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REPORTS OF GASES
ARGUED AND DETERMINED
IN
^fie Court ot Minq^^ ISmrlbt
AND
UPON WRITS OF ERROR FROM THAT COURT
TO TnE
iSxrtiraurt <ff|iamlirt,
AND IN
THE BAIL COURT,
WITH •
A TABLE OF THE NAMES OF CASES
AND
A DIGEST OF THE PRINCIPAL MATTERS.
BY
S. B. HARRISON and F. L. WOLLASTON, Esqrs.
OF THE MIDDLE TEMPLE,
BARRISTERS AT LAW.
VOL. 11.
FROM EASTER TERM, SIXTH WILL. IV. 1836,
TO MICHAELMAS TERM, SEVENTH WILL. IV. 1836,
BOTH INCLUSIVE.
LONDON:
HENRY BUTTERVV^ORTH,
7, FLEET STREET ;
AND RICHARD PHENEY, 89, CHANCERY LANE.
1837.
LONDON :
C. ftOWOSTH AVO BOVt, PRINTBRS, BELL-TARD>
TBMFLB-BAR.
JUDGES
OF THE
COURT OF KING'S BENCH,
During the Period of these Reports,
The Right Hon. Thomas Lord Denbian, C.J.
The Hon. Sir Joseph Littledale, Knt.
The Hon. Sir John PArrEsoN, Knt.
The Hon. Sir John Williabis, Knt,
The Hon. Sir John Taylor Coleridge, Knt.
ATTORNEYGENERAL.
Sir John Campbell, Knt
SOLICITOR-GENERAL.
Sir Robert M ounsey Rolfe, Knt.
a2
3
Tbe Reports of the Cues in the last Term in tbia Volume were
furnished hj Messrs. Willhokb and Wollastoh.
NAMES OF CASES
REPORTED IN THIS VOLUME.
A.
Page
Abergele (Inhabitants), Rex v.. . 875
Adams, Cain v 288
Alcock V. Taylor 58
Aider v. Park and Iveson (B. C.) . 78
Alexander, Smith v. (B. C.) ...... 8S
Alston (clerk) v. Atlay 166
Anonymous 64
-, Ex parte 65
Anstice, Fenton v. (B. C.) 125
Anthony, Griffiths v , 398
Aslackby (Inhabitants), Rex v, . . 217
Atkins V. Owen 59
Atkinson v. Clean (B. C.) dOl
Atlay, Alston (derk) v 166
B.
Bail, Brown's (B. C.) 291
, Haywood's (B. C.) 289
, Holling s (B. C.) 290
, Park's (B. C.) 134
, Pierce's(B. C.) 290
, Rout's (B. C.) 291
, White's (B. C.) 134
Ballantyne v. Taylor 453
BardeU, Rex v 401
Barker v. Gleadow (B. C.) • 113
Barnard's Inn, Rex v 62
Barratt v. James (B. C.) •••,.... 128
Bartlett v. Pemell 16
Bastard, Jeffery v 60
Page
Bastard v. Smith 428
Benmore v. Neck 178
Bennett, Tyler v 272
Biddle, Lydall v. (B.C.) 302
Biddulph V. Gray (B. C.) 335
Billinghay (Inhabitants), Rex v. . . 419
Billings, Ex parte (B. C.) 827
Bird V. Higginson 278
Black V. Cloup (B. C.) 297
Blanchard, Strike v. (B. C.) .... 329
Blewitt V. Tregonnin (B. C.) .... 325
Bligh, Ranger v. (B. C.) 299
Bobbing (Inhabitants), Rex v 418
Bodenham v. Ricketts (B. C). . . • 132
Body, Owen v 31
Bolton (Lord) v. Tomlin 369
Bonsall, Steeple v 11
Boucher, Gyde r. (B. C.) 127
Bowdler, Chappel v. (B. C.) 319
Bowler, Clay v 283
Brady v. Veeres (B. C.) 320
Briant, Scott v 54
Bristol (Governors of the Poor),
V. Wait 70
Broadbent, Wallis v 40
Brough V. Scarby (B. C.) 139
Brown's Bail (B. C.) 291
Brown, Kelly v. (B. C.) 315
, Scaith V. (B.C.) 322
Burton, Deeley v. (B. C). ....... 138
Bushell, Inland r. (B. C.) 118
Byles V. Walker (B. C.) 302
NAMES OF CASES.
C.
Cadaval, Duke de, v. Collins 54
Cain 0. Adams 288
Campbell v. Maund (In error). . . . 457
Cane v. Chapman 355
Caaael v. Lord Glengall (B. C). . . 31 S
Chafey, Seijeant o 273
Chaplin, Syms v 411
Chapman, Cene D 355
, Phillips V. (B. C.) 301
Chappel V. Bowdler (B. C.) 319
Charleion, Wise v 49
Chevell, Faulkner r 188
Cbitty.RexD 399
CUringbold, Laahroar v. (B. C.) . . 87
Clarke v. Owen (B. C.) 384
Clay V. Bowler 283
Clean, Atkinson r. (B. C.) 801
Clifford D. Parker (B.C.) 297
Clifton, Ex parte (B, C.) «96
Cloup, Black p. {B.C.) 297
Coker, Hitchcock c. (In error) . . 464
Cdbwm D. Hall (B, C.) 316
Colebrooke e, Tickell 83
Colliiu, Duke de Cadand v Si
, Edwards p. (B. C.) 298
Connop, Rex u. (B. C.) 81
Cornwall (Jiwtices), Rex e 157
Crois V. Meicalf 377
Crowe, Hopkins v 21
Cnmberworth (Inhabitants), Rex p. 439
Ciutoma(Comn]iuioner8), Rexc. 847
Dale, Gilbert p. 383
Dark, Kirke v. (B. C.) 94
Davey, HaJne p. « 30
Davies, Evans v. 15
Day p. King ]78
Deeley c. Burton (B. C.) 138
Deere, Parryp 395
P'g* P«ge
Dempilliers 0. Holden .'594
De Reutzen (Baron) p. John (B.C.) 331
Dixon, Morris v 57
Doe d. All Souls College p. Roe
{B.C.) 138
d, Barron p. Purclias 50
p. Baxter, d. Lewis 264
d. Brickdale p. Roe (B. C.).. 333
■ d. Burgess c. Thompson. . . . 451
d. Butler p. Roe (B. C). ... 130
AChildersp. Roe(B, C.)... 121
p. Clifton, d. Hurst 885
d. Crosthwaite e. Dixon 364
d. De Rutzm p. Lewis. 168
p. Dixon, d, Crosthwaite. . . . 364
P. Edwards, (/. Linaey 139
p. Errington, rf. Poole 448
d. Finch p. Roe (B. C.) 33*
<(. Harris p. Saunder SflO
■ d. HewsoD p. Roe (B. C.) . , 33*
d. Hodgson c. Summerfield
(B.C.) 291
d. Hubbard p. Roe (B. C). . 333
— — d. Hunt p. Clifton 285
1/. Jones p. Williams 213
d, Lewis v. Baxter 264
^ id.DeRutzen 168
d. Linsey p. Edwards 139
p. Meeks, d. Taylor (Bart.)
(B.C.) 135
p. Mellish, d Siilwell 3*1
d. Orchard p. Stubbs 285
' d. Poole p. Errii^on 448
p. Purchaa, rf. Barron 50
p. Roe, d. All Souls College
(B.C.) 138
, A Brickdale (B.C.) . 333
,((. Butler (B. C.)... 130
, rf. Childers (B. C). . 121
, d. Finch (B. C.) 33*
, d. Hewson (B.C.) . . 334
, d. Hubbard (B. C.) . 333
NAMES OF CASES.
▼11
Page
Doe V. Roe, d. Ross (B. C.) .... 124
, d. Smith (B. C.) 332
, d. Watts (B. C.) 335
, d. Weeks (B. C). . . 335
d. Ross V. Roe (B. C.) .... 124
d, RowlandsoD v. Wainwright 391
V. Saunder, d, Harris 350
d Smith V. Roe (B. C.) 332
V. , dWiUiams 176
d. Stilwell V. Mellish 341
V. Stubbs, d. Orchard 285
V. Summerfield, d. Hodgson
d. Taylor (Bart.) v. Meeks
V. Thompson, d. Burgess. ... 451
— V. Wainwright, d» Rowlandson 391
- d. Watts 9. Roe (B.C.) .... 335
d. Weeks o. Roe (B. C). ... 335
V. Williams, d, Jones 213
d. V. Smith 176
Dover Street Road (Trustees),
Rexo 423
Dunbar, Ohrly v 454
Dursley (Churchwardens), Rex v. . 9
E.
Eastington (Inhabitants), Rex v. . . 373
Edlaston (Churchwardens), Rex v. 429
Edwards o. Collins (B. C.) 298
, Woodhamv 443
Elliott, Evans v 231
Ellis V. Giles (B. C.) 329
Elwes, Guest v 34
Evans v. Davies 15
V. Elliott 231
Eve, Rex V 450
Ex parte QS
Billings (B. C.) 327
Clifton (B.C.) 296
Page
Ex parte Fryer;[(B. C.) 294
— Handcock 99
Lawson (B.C.) 35
Minchin (B. C.) 326
Ridley M
Scott(B.C.) 296
Strong (B. C.) 292
Thomson (B. C.) 327
F.
Falmouth (Lord), Gambrell t?. . . 287
Faulkner v, Chevell 183
Fell V. Tyne (B. C.) 299
Fenton v. Anstice (B. C.) ] 25
Flower, Grant v. (B. C.) 326
Fordwich (Mayor), Tomlin v 172
Fowell r. Petre 379
Fry, Johnson v. (B. C.) 292
Fryer, Ex parte (B. C.) 294
G.
Gambrell v. Lord Falmouth 287
Gaytbrd, Mackenzie v. (B. C.) . . 330
George, Tibbitte v 154
Gibbs, Williams v 241
Gilbert p. Dale 38S
Giles, Ellis r. (B.C.) 329
Gleadow, Barker v. (B. C.) US
Glengall (Lord), Cassell v. (B. C.) 313
Godman, Grindall v 339
Golding V, Scarborough (B. C). . . 94
Grabham, Harvey v 146
Grant v. Flower (B. C.) 326
Graves v. Hicks 74
Gray, Biddulph v. (B. C.) 335
Gri£Bths v. Anthony 398
Grindall v. Godman 339
Guest V, Elwes 34
Gwinnell 0. Herbert 194
Gwynne, Williams V. (B.C.) 312
Gyde r. Boucher (B, C.) 127
NAMES OF CASES.
H.
Pige
Haine v. D*vey 30
Hall, Colbron B. (B. C.) 316
Hancock, Rex v. (B. C.) 293
Handcock. Ex parte 99
Hanny, Newnham v. (B. C.) 303
Harding o. Manners(B. C.) 80
Hardman, Roscoe p. (B.C.) .... 118
Harris, Peacock v 281, 456
Harrison v. Round 18
Halt r. Marsh 341
Harvey v. Grabhara 1*6
Ha««el. Rex r. (B.C.) 321
Hawley r. Sherley {B. C.) 331
Hay, Shearwood v 249
Hays,LilIyc 338
Hayselden r. Staff. 204
Haywood's Bail (B. C.) 289
Heap, Smith t>. (B. C.) 89
Heath, Rex r 1*3
Hedges c. Jordan (B. C.) 92
Herbert, Gwinnell e 194
Hertfordihire (Sheriff), Rex v.
(B.C.) 122
Hextiara (Lord of the Manor),
Bext. 396
Hicks, Graves e 74
Higgins, Rex V 397
Higginaon, Bird t> 278
Hills V. Thorowgood 102
HUton, Lewis D. (B. C.) 314
Hitchcock c. Coker (In error) ... 464
t.. Smith (B.C.) 336
Holbeach (Inhabitants), Rex P. .. 414
Holden, Dempilliers V 394
Boiling's Bail (B. C.) 290
Hopkins i;. Crowe 21
Hough B. May 33
Howell ». Jacobs (B.C.) 331
Hythe (Mayor), Rexc _455
I.
Igbtham (Inhabitants), Bex v 7
inland v. Bushel! (B. C.) .
WiUiaraa (B. C.) .
Isley, Rex »
Jackson p. Taylor ( B. C.) 1 35
Jacobs, HoweU r. (B.C.) 331
James, Barratt v. (B. C.) 128
V. Trevanion (B. C.) 332
Jamieson, In re 35
Jeffery v. Bastard 60
Jehu, Jones o. (B. C.) 119
John, Baron deBeutzenv. (B.C.).. 331
Johnson v. Fry (B. C.) 292
,Rexi. 201
Jones V.Jehu (B.C.) 119
D.Owen 191
». Reade (B. C.) 382
, Rex V. (B. C.) 293
V. Shears 43
Jordan. Hedges o. (B. C.) 92
Jowl, Rex V. 375
Kelly p. Brown (B.C.) 315
Kelvedon (Inhabitants), Rex V. .. 415
Kent, Lloyd p. (B.C.) 130
King,DaytJ 178
Kirket. Dark(B.C.) 94
Lake v. Ruffle 203
Langridge, Willis w. 250, 309
Laahmar v. Claringbold (B. C.) . . 87
Lawrence v, Mathews (B. C). . . . 123
Lawson, Ex parte (B.C.) 85
Lewis r. Hilton (B. C.) 314
t. Lady Parker 4C
Lillie p. Price 381
Lilly c. Hays 338
Lister v. LoWey 12
NAMES OF CASES.
Pige
Liverpool Gas Company, Painter v. 833
Lloyd P. Kent {B. C.) 130
c. Wood IflS
Lobley, Lister v IX
London Dock Company, Rex c. . . 867
Lunn, Bex t. (B. C.) 314
Lydall t>. Diddle (B. C.) 808
M.
Mackenzie c. Gayford (B. C.) 330
Maddox, Snook v 188
Maidstone (Inhabitants), Rex v... 198
Manneri, Harding e. (B. C.) 80
Manning v. Wasdale 431
Mai^tson v. Tu^he (B. C.) .... 85
Marih, Hart v 341
,Rexo «55
,Rexp 366
Martin v. Strong 336
Masters v. Tickler (B. C.) 81
Mathens, Lanrencen.fB. C.},... 133
Matthews c. Sims (B.C.) 298
Maton, Wandsborough c 37
Maund, Campbell v. (In error) . . 457
May, Hough t. 33
MerceroD v. Merceron 380
Metcalf; Cross r 377
Middlesex (Justices), Rex V 822
— ,Rexf 407
Miller, Somers V. (B. C.) 117
Milstead V. Nursey (B. C.) 893
Milverton (Inhabitants), Rex v. . . 434
Minchin, Ex parte (B.C.) 326
Morris t^. Dixon 57
Muslon r. Tabard (B. C.) 138
N.
Neale, Sabourin t 103
Neck, Benmore t>. 178
Newnhan v. Hwmy (B. C.) 303
Norwich Ro«d (Tnutees), Rex v.. 385
P»ge
Nowellc. Underwood (B.C.).... 300
Nursey, Milstead v. (B. C.) 293
O.
Ohrly t>. Dunbar 454
Oldland (InhabitanU), Res v 4
Oliver, Rhodes v. 38
Owen, Atkins v £9
r.Body 31
, Clarke o. (B. C.) 324
, Jones B. 191
Oxfordshire (Justices), Rex v.
(B. C.) 110
Painter v. The LiTerpool Gas Com-
pany 233
Park's bail (B. C.) 1S4
Park, Alder r. (B. C.) 78
Parker, Clifford v. (B. C.) 297
(Lady), Lewis v 46
, Wickens p. (B. C.) 137
Parry v. Deere 395
Peacock v. Harris 281, 456
Pepper v. Y eatman (B. C.) 116
Pemell, Bartlett c 16
Petre, Powell v 879
Phillips V. Chapman (B. C.) 301
.Sl^gu 51
Pierce's bail (B. C.) 290
Piggott V. Rush 28
Preston, Smith v. (B. C.) 93
Price, LiUie v 381
R.
Ranelagh (Lord), Thomas D. (B.
Ranger v. Bligh (B. C.) . .
Rathbone, Smith t.. (B. C.)
Reade, Jones 0. (B.C.) 382
Reeves, Smith c. (B. C.) SOS
RegulR Generales 1, 289
Rex V. Abergele (Inhabitants).
NAMES OF CASES.
Page
Rex V. Aslackby (Inhabitants). ... 217
V. Bardell 401
V, Barnard's Inn 62
t>. Billingliay (Inhabitants) ..419
V. Bobbing (Inhabitants). ... 418
V. Chitty S99
— V, Connop (B. C.) 81
r. Cornwall (Justices) 157
V. Curaberworth (Inhabitants) 439
V. Customs (Commissioners). 247
V. Dover Street Road (Trus-
tees) 423
V, Dursley (Churchwardens) 9
V. Eastington (Inhabitants) . . 873
V, Edlaston (Churchwardens) 429
V. Eve 450
V. Hancock (B. C.) 293
V. Hasse (B. C.) 321
V. Heath 113
V. Hertfordshire (Sheriff)
V. Hexham (Lord of the Ma-
nor) 396
V. Higgins 397
V. Holbeach (Inhabitants) . • 414
r. Hythe (Mayor) 455
V. Ightham (Inhabitants). ... 7
v.Isley 196
V.Johnson 201
r. Jones (B. C.) 293
V. Jowl 375
Vs Kelvedon (Inhabitants) . . 415
V, London Dock Company . . 267
V. Lunn (B. C.) 314
V. Maidstone (Inhabitants) . . 1 98
V. Marsh 255
V. 366
V. Middlesex (Justices) .... 222
v» — • (Justices) 407
V. Milverton (Inhabitants) . . 434
V, Norwich Road (Trustees) 385
0. Oldland (Inhabitants) .... 4
[ Page
j Rex V, Oxfordshire (Justices)
j v*^* ^'z •••••••.•••••• 1 10
r. Rogers (B.C.) 124
V. St. James's Westminster. . 253
V. St. Marylebone (Vestry-
men) 261
V, St. Michael's Pembroke
(Churchwardens) 344
V. Shropshire (Sheriff) (B. C.) 3 1 9
r. Sourton (Inhabitants) .... 209
V. Staffordshire (Justices) . . 48
V. Stoke Damerel (Minister,
&c.) 346
V Templar 430
" V, Treasury Commissioners . . 67
r. Usworth, Great and Little 100
V. Warwickshire (Justices) . . 429
r. Westowe (Overseers) .... 446
V. White 403
V. Williams 275
V. Wilson 225
V, Wistow (Churchwardens) 95
V, Witney (Inhabitants) .... 150
Rhodes v. Oliver 38
Ricketts, Bodenham v. (B. C.) . . . . 132
Ridley, Ex parte 66
Robinson v. Stoddart (B. C.) .... 314
V. Taylor (B. C.) 304
Rogers, Rex p. (B. C.) 124
Roscoe r. Hardman (B. C.) 118
Round, Harrison v 18
Rout's bail (B. C.) 291
Ruffle, Lake v 203
Rush, Piggott 9 28
S.
Sabourin v. Neale 103
St. James's Westminster, Rex o. . . 253
St. Mary lebone( Vestry men). Rex V. 261
St. Michael's Pembroke (Church-
wardens), Rex V 344
NAMES OF CASES.
XI
Fage
Salisbury p. Sweetheart (B. C.) • . 336
Scaith r. Brown (B.C.) 322
Scarborough^ Golding r. (B. C.) . . 94
Scarby, Brough v, (B. C.) 139
Scott, Ex parte (B. C.) 296
F. Briant 54
Serjeant r. Chafey 273
Shears, Jones v 43
Shearwood v. Hay 249
Sherley, Hawley v. (B. C.) 331
Shropshire (Sheriff), Rex ». (B. C.) 319
Sims, Matthews v. (B. C.) 298
Slegg V. Phillips 51
Slingo, Taylor v." (B. C.) 327
Smith V. Alexander (B. C.) 82
, Bastard v 428
V. Heap (B. C.) 89
, Hitchcock V. (B. C.) 336
r. Preston (B. C.) 93
V, Rathbone (B. C.) - 330
p. Reeves (B. C.) 306
Snook r. Maddox 188
Somers v. Miller (B. C.) 117
Sourton (Inhabitants), Rex v 209
Staff, Hayselden v 204
Staffordshire (Justices), Rex v 48
Steeple v. Bonsall 11
Stoddart, Robinson v. (B. C). ... 314
Stoke Damerel (Minister, &c.).
Rex V 346
Strike v. Blanchard (B. C.) 329
Strong, Ex parte (B. C.) 292
, Martin r 336
Sweetheart^ Salisbury v. (B. C.) . . 336
Syms V. Chaplin 41 1
T.
Tabard, Muston v. (B. C.) 138
Taylor, Alcock v 58
, Ballantyne v 453
, Jackson r. (B. C.) ...... 1 35
Page
Taylor, Robinson v, (B. C.) 304
r. Slingo (B. C.) 327
Templar, Rex v 430
Thomas V. Lord Ranelagh (B.C.). 336
Thomson, Ex parte (B. C.) 327
Thorowgood, Hills r 102
Tibbitts V. George 154
Tickell, Colebrooke v 23
Tickler, Masters v. (B. C.) 81
Tomlin, Lord Bolton v 369
r. The Mayor of Ford-
wich 1 72
Treasury Commissioners, Rex ».. . 67
Tregonnin, Blewitt v, (B. C.) .... 325
Trevanion, James v, (B. C.) 332
Tugghe, Margetson v. (B. C.) . . . . 85
Turner, Ward v, (B. C.) 90
Tyler ». Bennett 272
Tyne, Fell r. (B. C.) 299
U.
Underwood, Nowell v. (B. C.) . . . . 300
Usworth, Great and Little, Rex v. 100
V.
Veeres, Brady r. (B. C.) 320
W.
Wait, Governors of the Poor of
Bristol V 70
Walker, Byles r. (B. C.) 302
Wallis V, Broadbent 40
Wandsborough v, Maton 37
Ward i;. Turner (B. C.) 90
Warwickshire (Justices), Rex v. . • 429
Wasdale, Manning v 431
Watson r. Wilkes 187
Westowe (Overseers), Rex v 446
White's bail (B. C.) 134
Xll
NAMES OF CASES.
Page
White,Rext? 403
Wickens ». Parker (B.C.) 137
Wilkes, Watson v 187
Williams, In re (B. C.) 294
V. Gibbs 241
XJ. Gwynne (B. C.) • . . . 312
, Rexr 275 Y.
Willis V. Langridge 250, 309 j Yeatman, Pepper v. (B.C.)
Wilson, Rex v
Wise V. Charleton
Wistow (Churchwardens), Rex v,
Witney (Inhabitants), Rex v. . . .
Wood, Lloyd v
Woodham v. Edwards
Page
225
49
95
150
158
443
116
'\
CASES
ARGUED AND DETERMINED
IN TDE
COURT OF KING'S BENCH,
IN
Easter Term, 1836.
UEGULiE GENERALES.
EXAMINATION OF ATTORNEYS. ^
J> EGULAl'IONS approved by the Judges in Easter Term, 1836, for the King't Bench.
examination of persons applying to be admitted as Attorneys of the J^'^^
Courts of King's Bench, Common Pleas, or Exchequer, pursuant to the Rule Gbhiralm.
of Court made in Hilary Term, 1 836.
Whereas, by a Rule of the Courts of King's Bench, Common Pleas, and
Exchequer, made m Hilary Term, 1836, it was ordered, that the several
Masters and Prothonotaries for the time being of the said Courts respec-
tively, together with twelve Attorneys or Solicitors, should be appointed, by
a Rule of Court in Easter Term in every year, to be examiners, for one year,
of persons applying to be admitted Attorneys of the said Courts, any five
of whom (one whereof to be one of the said Masters or Prothonotaries)
should be competent to conduct the examination ; and that from and after
the last day of the present Easter Term, subject to such appeal as thereinafter
mentioned, no person should be admitted to be sworn an Attorney of any of
the said Courts, except on production of a certificate signed by the major
part of such examiners actually present at, and conducting his examination,
testifying his fitness and capacity to act as an Attorney, such certificate to be
in force only to the end of the term next following the date thereof, unless
such time should be specially extended by the order of a judge. And it
was further ordered, that the examiners so to be appointed should conduct
the said examination, under regulations to be first submitted to and approved
by the Judges ; and that until further order, such examinations should be
held in the hall or building of the Incorporated Law Society of the United
Kingdom, in Chancery Ijane, on such days (being within the last ten days of
every Term) as the said examiners, or any five of them, should appoint ; and
diat any person not previously admitted of any of the three Courts, and
VOL. If. B
TERM REPORTS vx thi KING'S BENCH.
King't Bench.
BXOULX
Gbmerales.
desirous of being admitted, should give a term's notice of his intention to
apply for examination, by leaving the same with the Secretary of the Society
at their said hall. And whereas, by a Rule of all the said Courts, made in
this present Easter Term, it was ordered, that the several Masters and Pro-
thonotaries for the time being of the said Courts respectively, together with
Thomas AdUngtoUy Jonathan Brundrett,George Frere, James IVilliam Freshjieldt
James Hall, Bryan Holmes fVilliam Low, Edward Rowland Pickerings Samuel
White Sweet, William Tooke, Richard White, and Edward Archer Wilde, gen-
tlemen, Attorneys, should be, and the same were thereby appointed examiners
for one year then next ensuing, to examine all such persons as should desire
to be admitted Attorneys of all or either of the said Courts, from and after
the last day df that term ; and that any five of the said examiners, one of
them being one of the said Masters or Prothonotaries, should be competent
to conduct the said examination, in pursuance of, and subject to the provi-
sions of the said rule in Hilary Term last.
In pursuance of the said Rules the following regulations, for conducting
the said examinations, have been submitted to, and approved by the Judges
of the said Courts : —
1 . That every person applying to be admitted an Attorney of any of the
said Courts, pursuant to the said Rules, shall, within the first seven days of
the term in which he is desirous of being admitted, leave or cause to be left
with the Secretary of the said Incorporated Law Society, his articles of
clerkship, duly stamped, and also any assignment which may have been made
thereof, together with answers to the several questions hereunto annexed,
signed by the applicant, and also by the Attorney or Attorneys with whom
he shall have served his clerkship.
2. That in case the applicant shall show sufficient cause, to the satisfaction
of the examiners, why the first regulation cannot be fully complied with, it
shall be in the power of the said examiners, upon sufficient proof being given
of the same, to dispense with any part of the first regulation that they may
think fit and reasonable.
3. That every person applying for admission shall also, if required, sign,
and leave or cause to be left with the Secretary of the said Society, answers
in writing to such other written or printed questions as shall be proposed by
the said examiners, touching his said service and conduct ; and shall also,
if required, attend the said examiners personally, for the purpose of giving
further explanation touching the same ; and shall also, if required, procure
the Attorney or Attorneys with whom he shall have served his clerkship as
aforesaid, to answer, either personally or in writing, any question touching
such service or conduct, or shall make proof, to the satisfaction of the said
e^onnineni, of his inability to procure the same.
4. That every person so applying shall also attend the said examiners, at
the HsJl of the said Society, at such time or times as shall be appointed for
that purpose, pursuant to the said rule, as the said examiners shall appoint,
and shall answer such questions as the said examiners shall then and there
put to him, by written or printed papers, touching his fitness and capacity to
act as an Attorney.
5. That upon compliance with the aforesaid regulations, and if the major
part of the said examiners actually present at and conducting the said exami-
EASTER TERM, 1836. 3
(one of them being one of the said Masters or Prothonotaries) shall be King^s Bendi.
tatisfied as to the fitneaa and capacity of the person so applying to act as an ^^v^
Attorney ; the said examiners present, or the major part of them, shall cer- Reoul«
tify the same under their hands, in the following form, viz. :— GBWEBALBa.
In pursuance of the Rules made in Hilary and Easter Terms, 1836, of the
Courts of King's Bench, Common PleaSf and Exchequer^ we, being the major
part of the examiners actually present at and conducting the examination of
A. B., of, &c., do hereby certify, that we have examined the said A, B. as
required by the said rules, and we do testify that the said A. B, is fit and
capable to act as an Attorney of the said Courts.
(The above Rule is signed by all the Judges.)
Questions as to due Service, to be answered by the Clerk.
1 . What was your age on the day of the date of your articles ?
2. Have you served the whole term of your articles at the office where
the Attorney or Attorneys to whom you were articled or assigned carry on
his or their business, and if not, state the reason ?
S. Have you, at any time during the term of your articles, been absent
without the permission of the Attorney or Attorneys to whom you were
articled or assigned, and if so, state the length and occasions of such ab-
sence?
4. Have you, during the period of your articles, been engaged or con-
cerned in any profession, business, or employment, other than your pro-
fessional employment as clerk to the Attorney or Attorneys to whom you
were articled or assigned ?
5. Have you, since the expiration of your articles, been engaged or con-
cerned, and for how long time, in any and what profession, trade, business,
or employment, other than the profession of an Attorney or Solicitor ?
Questions as to due Service, to be answered by the Attorneys.
1. Has A, B. served the whole term of his articles at the ofiSce where you
carry on your business, and if not, state the reason ?
2. Has the said A, jB., at any time during the term of his articles, been
absent without your permission, and if so, state the length and occasions of
tndi absence.
d. Has the said A. B., during the period of his articles, been engaged or
eonoemed in any profession, business, or employment, other than his pro-
iessiooal employment as your articled clerk ?
4. Has the said A. B., during the whole term of his clerkship, with the
exceptions above-mentioned, been faithfully and diligently employed in your
prof^Kional business of an Attorney or Solicitor?
5. Has the said A, B., since the expiration of his articles, been engaged
or concerned, and for how long time, in any and what profession, trade,
buiioess, or employment, other than the profession of an Attorney and
Solicitor ?
Aod I do hereby certify that the said A, B, hath duly and faithfully served
b2
TERM REPORTS in the KING'S BENCH.
Kwg*i Bench, under his articles of clerkship, (or assignment, as the case may be,) bearing
date, &c., for the term therein expressed, and that he is a fit and proper
person to be admitted an Attorney.
Reguljb
Gkneraleb.
The following notice has been posted up in the Common Law Courts, and
at the Judges' Chambers, and all the Law Offices : —
Examination of Attorneys under the Rules of Hilary and Easter Terms, 1 836.
The articles of clerkship, and answers to questions touching the due ser-
vice and good conduct of persons applying to be admitted Attorneys, are to
be left with the Secretary of the Incorporated Law Society, at the Hall inr
Chancery Lane, within the first seven days of Term, (viz. between the 23rd
and 30th May, inclusive).
The first examination will take place at the Hall of the Incorporated Law
Society, on Saturday the -l-th o^ June, and commence at ten o'clock in the
forenoon. The applicants are required to attend in the Flail, at half-past
nine, on the day of examination. '
Applications for further information may be made to the Secretary.
17th il%, 1836.
£. Maugham,
1. A pauper met
with an accident
in the parish in
which lie was re-
siding, but in
which he was not
setUed:>-l/eM.
that he was a per-
son coming to set-
tle in that parish,
within the IS &
14 Car, t, and re-
movable ; and
that the accident
was an infirmity,
withiu the 35 Geo,
3, c. 101, which
gavepower to jus-
tices to make an
order of suspeu-
sion, and charge
the parish in which
he was .settled
with the exppiisps.
2. A pauper,
under sudi cii-
cumstances, could
not be considered
aa casual poor.
The King v. The Inhabitants of Oldland.
/^RDER for the removal of Samuel Vox, his wife and children, from
Monythusloyn to Oldland. On appeal the sessions confirmed the order,
subject to a case, in which it was stated, tliat some considerable time before
the happening of the accident thereinafter mentioned, the pauper, Samuel
Vox, being then settled in the hamlet of Oldland, resided in the parish of
Monythusloyn for the purpose of his employment, and continued so to reside
up to the time of the making of the order appealed against. During his
residence in Monythusloyn, he was employed in a colliery there, and in the
course of that employment he, ou the 29th day of May, 1832, met with
an accident, by which his thigh bone was broken. The pauper was there-
upon carried to the nearest and most convenient dwelling-house in the same
parish of Monythusloyn ; a surgeon was sent for by the parish officers of that
parish) and the expenses of 1 0/. 'is. Qd, were afterwards, and by reason of
the accident, incurred by the parish officers in his cure and maintenance.
The pauper had not been chargeable to the parish of Monythusloyn up to
the time of the accident, but the surgeon had been employed by the parish
officers to attend the pauper in consequence of the accident, before the
order of removal was made. On the 30th of May, 1832, the pauper then
being, by reason of the accident, incapable of being removed, or of being
brought before any justice of the peace for the purpose of being removed,
without endangering his lite, his examination was duly taken, and thereupon
the order in question, for the removal of the paujier from the parish of Many-
EASTER TERM, 1836. 5
ihusloyn to the hamlet of Oldiand, was made by two justices of the peace in King*t B«ttch,
and for the county of Monmouth, and immediately suspended, by an order of v^v-^
suspension indorsed thereon by the said justices. On the 31st o( October The Kino
following, the pauper being in a fit state to be removed, the same justices The Inhabiunfs
took off the suspension, and made an order for the payment by the appel- of Oldland.
lants of the sum of 10/ 2jr. 6d. for the expenses so incurred under the sus-
pension of the order. The question for the opinion of the Court was,
whether, at the time the order of removal was made, the pauper was remov-
able from the parish of Monythusloyn, so as to charge the appellants with
the costs so incurred under the suspension of the order.
Greaves, in support of the order of sessions. — Under the 13 & 14 Car, 2,
c. 12, the parish officers had power to remove persons who were likely to
become chargeable. The 35 Geo, 3, c. 101,8. 2, — passed to remove certain
inconveniences arising from that state of the law — repealed the former sta-
tute, and enacted, that no person should be removable unless he was actually
chargeable. (He was stopped.)
The Attoniey^General Siiid Nicholl, conlrd. — The pauper was irremovable
in consequence of the state he was in, arising from the accident ; the order
was, therefore, void. — [^Patteson, J . — The question is, whether a man who is
an inhabitant of a parish, can be in any case casual poor in that parish. It
seems to me that a man cannot, under any circumstances, be casual poor in the
place where he resides.] — In case of an accident occurring to a pauper in
any particular parish, that parish is bound to relieve and take care of him,
and cannot, by means of an action, obtain repayment of the expense incurred
from another parish in which the pauper is settled, if that should happen to
be the case. This is the case even where notice may have been given to the
officers of that parish. Atkins v,Banwell{a), Lamb v. Bunce {b). Even if
the officers of the parish in which the accident happens neglect their duty in
this respect, any individual parishioner may take care of the pauper, and
recover the expenses from them. Tomlinson v. Bentall (c), Gent v. 2W-
kins(d), Simmons v. Wilmott(€), This was the state of the law before the
passing of the 3.5 Geo. 3, c. 101 ; and that statute has made no difference,
because it does not apply to cases like this, where, by reason of accident,
the removal of the pauper is absolutely impossible. In Rex v. Bury St.
Edmunds (J") it was held, that the expenses of relief given to a pauper, who
had met with an accident in a parish in which he was not settled, could not
be recovered, during the suspension of an order of removal obtained by the
parish in which the accident happened. — [^Patteso^i, J.— That case turns en-
tirely on the ground, that the pauper was not a person who had come to
settle.] —Then in Rex v. St, Lawrence, Ludlow {g), it was even held, that a
pauper, under circumstances like the present, was irremovable from a third
parish, into which he had been carried for the purpose of being cured, from
the parish in which the accident happened. All these cases show that the
(a) 2 East, 605. (e) 3 Rsp. 91.
{b) 4 Maule & Selw. 275. (/) 10 £ast. 25.
<c) 5 Barn. & Cress. 738. {g) 4 Barn. & Aid. 660.
(rf) I Dowl. fie Ryl. 4.
6 TERM REPORTS in the KING'S BENCH.
King't B$ruk, expenses were not recoverable by action, and if so, they are equally irre-
^<^vW coverable by the machinery of a suspended order of removal.
The KiKG
Tie Inhabitants ^^i Denman, C. J. — I cannot feel any doubt upon this case. The
of Oldland. pauper was clearly a person who had come to settle in the parish, within the
15 & 14 Car. 2. Such a person, before the 35 Geo. 3, was removable, if
likely to become chargeable ; but by that statute he was only made remov-
able when actually chargeable. There was danger that a pauper, who had
become chargeable by reason of illness, might be removed too soon ; power
was therefore given to the justices to suspend the order of removal, if it should
appear to them that the pauper was unable to travel by reason of sickness or
other infirmity, or that it would be dangerous for him so to do. The ex-
pression *' other infirmity,*' I take to mean any bodily infirmity whatever.
Again, there might be danger that a person might be taken before the jus-
tices before he was in a fit state to be taken. Another act, the 49 Geo. 3, c.
1£4, therefore provides, that in such cases the justices might go to him.
The proper course seems to have been taken in this case ; and all that has
been done appears to me to be quite right.
LiTTLEDALE, J. — I am entirely of the same opinion. It seems to me quite
correct that the parish in which the pauper was settled should pay these
expenses. I do not agree that an accident is not an infirmity, within the
meaning of the statute. I think the word ** infirmity ** must of necessity
include an accident.
Patteson, J.— It seems to me that if we were to hold that this order is
not good, we should be deciding in a manner quite contrary to the object of
the 35 Geo. 3. It is undeniable that this pauper might have been removed,
independent of the danger which would have been incurred to his life. He
was an inhabitant who had come to settle, and had become chargeable ; he
was therefore removable, if it could be done without danger of life. Now
this is the very case provided for by the words of the statute. It is the pre-
cise case which was in the contemplation of the legislature. It is said he
was not chargeable, because the parish in which the accident happened was
liable for the expenses. No doubt they would have been so, and the pauper
would not have been removable if the accident had happened to him in a
parish in which he was not resident. But why ? Because, not having come
to settle in the parish, he would have been merely casual poor, and within
the cases which have been cited.
CoLERTDOE, J. — The question to be decided is, whether, at the time the
order was made, the pauper was removable so as to charge the parish in
which he was settled with the expenses incurred by maintaining him during
the titiie that the order was suspended. The first step is, was the man
removable? If he was, then, although it might not be proper to carry the
order of removal into effect, the justices might, if it had been necessary,
have gone and examined the pauper as to his place of settlement, and made
an order of removal. Then, although the order might have been made, it
could not with any propriety have been carried into effect, on account of
EASTER TERM, 1836. 7
the state in which the pauper was. The 35 Geo. 3, was passed for the very King*t Bench.
purpose of providiug for this state of circumstaDces. That statute gives v^v^/
power to the justices to suspend the order ; and charges the expenses of '^^ ^^"^
maintaining the pauper, subsequent to the time when the order was ohtained, jhe Inhaintants
on the parish to which the pauper is removed. The next question, then, in of Oldlanp^
this case, is, whether the order of suspension could properly be made ? On
that point I have no doubt whatever. This was a case exactly within the
tenns of the statute, where the pauper could not be removed without danger,
io consequence of infirmity.
Order confirmed.
The King v. The Inhabitants of Ightham.
QRDER for the removal otJokn Webb from Sundridge to Ightham. On Ain«iwbo
appeal the sessions quashed the order, subject to the opinion of the cupierofiLMi,wi
Court on the following case : — The respondents proved a settlement by birth »?pHed to by an-
. ,, . ° r r f/ other to pcnnit
m the appellant parish. The appellants set up a subsequent settlement in him to succeed a
the respondent parish, under the following circumstances: — William Webb, ^^^^^^^
the brother of the pauper John Webb, worked with IVm, Wright, a carpenter said, he woaid
residii^ at Ightham, for three years, under a verbal contract of apprenticeship ; ^nUciToniwS'
and in the year 1804, when the pauper was about twenty years old, applied to they wooid work
Wright to take the pauper in his place ; to which Wright answered, '* No, weii waithe*
that he would take no more three years* apprentices, unless they would agree trade, aod that he
to work on his land as well as at the carpentry business, I will have no do work as a ser.
mofe apprentices ftnr three years, unless he is agreeable to do other work as ^**»t it wa»
well ; I will take him to do work as a servant.*' Wright occupied three or paupe/shouid Uvt
four acres of hop ground. WilHam Webb assented to this ; and it was ^^^^*"JJJJ'
agreed that the pauper should live with Wright for three years, to learn the and leam um
bosiness of a carpenter^ and to do any other work he required him to do ; **"^nd^n
and he was to be paid nine shillings a week for the first year, ten shillings a other work be re-
week for the second year, and eleven shillings a week for the third year. It was xhl!^a»iCT wm to
further agreed, that if the pauper did any over-work at any time, he was to be pay weekly wagea»
paid for it in. addition to his rate of wages at the time ; Wright added, that the ^HM^t^t'^li '
pauper might have Sunday to himself, if he asked leave. The pauper entered "«« • defective
Wright's service in pursuance of this agreement, and served the three years, ^eutkeship.^nd
boardiag and lodging at his own expense, with a journeyman of Wright's. ^^\ • ^°^dt^^
BodUnn and Erskine Perry, in support of the order of sessions. — It must
be taken, that the sessions have found that this was a contract of hiring and
service ; and that finding is conclusive. In Rex v. St. Andrew the Great,
Cambridge (a), where it was a question, whether there was a hiring and ser-
vice for a year in the appellant parish, the sessions confirmed the order of
removal, subject to a case ; and it was held, that this amounted to a finding
by the sessions, that there was a hiring and serviqe for a year ; and that
such a finding ought not to be disturbed, if there were any premises to war-
rant it. So in Rex v. Great Wishford(b) the Court laid it down, that where
(a) 8 Bam. & Crtss. 664. (6) 5 Nev.&c Mann. 540.
8 TERM REPORTS in the KING'S BENCH.
King's Bench, the Sessions state facts and draw a conclusion, the Court will not disturb the
v^/^ finding, unless it appear that the evidence was contrary to the finding, or
The Kino that there was no evidence to support it. — [Lord Denman, C. J. — The Ses-
The Inhabitants ^*^"* ^^re have stated all the facts, upon which we must give our opinion,
of loHTBAM. This case differs from Rex v. Great Wishford^ inasmuch as there the Sessions
came to a conclusion of fact, whilst here the question is one entirely of law,
and the Sessions have come to no conclusion at all. In Rex v. King's Lynn (a)
the Sessions found that there was a contract of hiring and service, but stated
facts upon which the Court thought they were wrong.} — Each case of this
description must depend upon its own particular facts, as showing the object
which the parties had at the time of entering into the contract which is the
subject of discussion. In the present instance, the object of the master
clearly was to engage a servant, and not to take an apprentice. Rex v.
Coomhe{b), and Rex v. EcUngale (c), will be relied on by the other side, but
they are clearly distinguishable. This case seems to be more like Rex v.
Hitcham{d), in which the contract was held, under circumstances very like
the present, to be a contract of hiring and service. Rex v. CredUon (e\
and Rex v. Newiown^f), may also be referred to.
Deeds, contrd, was stopped.
Lord Denman, C. J. — It does appear to me that this was an imperfect
contract of apprenticeship. I think the primary intention was to teach the
pauper the trade of a carpenter.
LiTTLEDALE, J., after stating the facts, said : — I think the taking as a
servant was subsidiary to the main intention to take the pauper as an appren-
tice. It is not unusual for a master to agree to pay his apprentice ; that
circumstance, therefore, has no weight in showing that this was a contract of
hiring and service. Upon the whole, although the statements certainly
appear to be somewhat conflicting, I think that this must be taken to be an
imperfect contract of apprenticeship.
Patteson, J. — I also think this was an imperfect contract of apprentice-
ship.
Coleridge, J. — The Sessions ought to have found this case one way or
the other. It ought not to have come here. I agree with the rest of the
Court in thinking that this was a defective contract of apprenticeship.
Order of Sessions quashed.
(a) 6 Barn. & Cress. 97. (d) Burr. S. C. 489.
(6) 8 Bam. & Cress. 82. (e) 2 Barn. & Adol. 493.
{c) 10 Barn, fie Cress. 739. (/) 1 Adol. fie Ellis, 238.
EASTER TERM, 1836. 9
King** Bench*
The King v. The Churchwardens of Dursley.
l^ULE for a mandamus to the churchwardens of Dursley to make certain churchwardens
payments to Charles Bruce Warner f Esq., or to raise by rate a sufficient bySgc" s!c.
strni for the purpose of doinir so. The foUowinsc facts appeared : — In 1824, iw, to borrow
18S5, and 1826, repairs had been done to the parish cliurch to the amount credit of Uie
of 1585/. 12*. 7kd. At a vestry held 20th November, 1831, it was resolved, charchmte., for
- * '' , the purpose of
that as 413/. 3s. 9Jr/., part of that sum, remained unpaid, the sum of defrnying die
63/. 3*. 9Jrf. should be raised and paid in part, and that the further sum of J;;^"*^'**^
350/. should be borrowed upon the credit of the church-rates, under the cUureb: they
provisions of 59 Geo. 3, c. 134, s. 14, and that the churchwardens should t* mare?mJ*fbr
apply to the bishop and the incumbent for their consent ; and on application the purpose of
made, the bishop and incumbent did consent. On 27th February, 1832, ^^^"21)^7'^**
the then churchwardens borrowed from Mr. IVarner S501., and to secure borrowed to pey
the re-payment by instalments with interest, executed to him a deed of cofflJbyb^gonc
charge upon the church-rates then raised, or thereafter to be raised, in the ''P**"-
parish. A bond was also executed by the then churchwardens, and seven
other parishioners of Dursley, in the penal sum of 700/., conditioned for the
re-payment of the money borrowed on the terms of the deed. The instal-
ments, together with all interest, were paid up to 27th August, 1834 ; appli-
cations were then made to the churchwardens for a rate to be made to enable
them to pay the other instalments, but without effect. Several of the
parishioners refused to pay any rate for the purpose, on the ground that it
was made for the purpose of paying off a debt incurred in 1824 and 1825.
Thesiger and Busby showed cause. — ^No mandamus will go, because there
is another and a better remedy, namely, an action on the bond. Rex v.
Secern and Wye Railway Company (a) is the only case where it has been
held that such a circumstance is not an answer to an application for a man-
damus: but that case is distinguishable in many respects. Then again, the
Court will not grant a mandamus, because, if the churchwardens acted in
obedience to it, they would subject themselves to an action, by any attempt
to enforce payment of any such rate as that sought to be laid. In Rex v.
Hall and Dyer (b), the Court acted on that principle. It is clear that such a
rate as that asked for would be illegal, and any attempt to enforce it would
form the ground of an action. Churchwardens have no right to raise money
for payment for the repairs of the church done many years before. They
have only authority by the 59 Geo. 3, c. 134, s. 14, to raise money for pro-
spective repairs ; Rex v. Churchwardens of St. Mary, Lambeth (c).
R. V. Richards, contrd. — The bond is only a collateral security, and there-
fore cannot aflTect the course of proceeding in the regular way by mandamus.
The other objection, arising from the subjection of the churchwardens to an
action by any attempt to enforce this rate, does not apply, because there does
not exist a necessary ingredient in such an apprehension, — that it must be
based on a reasonable ground. There is not any objection to the raising of
(a) 2 Barn. & Aid. 646. (6) 2 Adol. & Ellis, 606. (r) 3 Bam. k Aid. 651.
10
TERM REPORTS in the KINGTS BENCH.
King'i Beneki
The Kino
V.
The Church-
wardens of
money for the by-gone repairs of a church, as well as for prospective repairs ;
both are equally within the reason of the law, and the language of the statute.
Cur. adv, vult.
Lord Denman, C. J., on a subsequent day (6th May), delivered judg-
ment.— ^This was an application for a mandamus to be directed to the church-
wardens of DursUy, commanding them to make a rate, and take all necessary
steps for the payment to Charles Bruce Warner, of the instalments remaining
due on a sum of 350/., which had been borrowed for the purpose of defray-
ing the expenses of repairing the parish church, and charged upon the
church-rates, under the authority of the 59 Geo. 3, c. 134, s. 14. It appeared,
among other facts, that the repairs in question had been done in the years
1824, 1825, and 1826, at an expense of 1500/.: that in 1832, the sum of
350/. remaining unpaid, the applicant had been asked to lend that sum, and
had done so, receiving a deed of charge, r^ular in form, and with the neces-
sary consent of the bishop, incumbent, and vestry : one instalment of the
principal and interest had been paid in 1833, and the interest to August,
1834. It was objected, on showing cause, that the section in question does
not authorize the borrowing of money and charging the rates retrospectively.
We have considered this objection, and although the words of the statute are
in thb respect general, we are of opinion that it must prevail. It is a
general rule with respect to parish rates, founded on obvious principles of
policy and justice, that they are not to be made retrospectively. The payers
being a fluctuating body, nothing, generally speaking, is more just or more
likely to conduce to economy, than to hold that they who create a charge
shall themselves bear it. The statute has to a certain extent modified the
general rule, and the churchwardens are authorized, with the sanction of the
vestry, bishop, and incumbent, to borrow, on the credit of the rates, such sum
of money as shall be necessary for defraying the expense of repairing the
church, and they are thereby empowered and required to raise by rate a sum
sufficient, from time to time, to pay the interest, and not less than 10 per
cent, of the principal, until the whole of the money so borrowed shall be
repaid. It appears to us that all the provisions point clearly to the limits of
departure from the general principle above stated. The consent of the in-
cumbent and bishop appears to have been thought necessary, in order to
see that the repairs should be of that onerous and permanent nature which
might properly be thrown in part on the payers of succeeding years. Their
consent, and (hat of the vestry, have the effect alao of securing the parish
from an improvident outlay ; and finally, the provision that the principal and
interest shall be paid in ten instalments, (which ought, in our opinion, to be
annual,) secures the participation of the existing rate-payers in the discharge
of the loan, and prevents it from becoming a burthen at any indefinite period
on their successors. The obvious purposes of the Act, so necessary to
prevent abuses of the power given by it, can only be secured by an adherence
to the general rule stated above, in all particulars not specially provided for
by the clause. We are therefore of opinion, that the rate now sought to be
imposed would not be authorized by the statute, and of course that the
present rule must be discharged.
Rule discharged.
EASTER TERM, 1836. 1 1
King^i Bench,
Steeple v. Bonsall.
1. A emote in
which there were
WM
'pRESPASS quare chutum /regit. Pleas ; 1 . A justification under a private
right of way. 2. A justification of a public right of way. 3. A justifi- S,^°i^u^
catioDy that before the making of an order of justices, there ought to have nhntd to «*!-
been a public footway leading from the premises of the defendant over the prnu, on Uie
locus in quo ; and the same was ordered to be stopped up by an order of jus- !I[!"'Mf.""*
tices, which was appealed against, and upon appeal confirmed: that upon found two issues
the confirmation of the order, and in order to induce the Court to confirm the ***'***• pWntjff.
' ... , *nd one for the
order, the plaintiff did, by a consent m writing, consent and agree with the defendeut, end
defendant, with the assent of the justices, that the defendant, whilst he should I^uwUf ihe7e*hid
be the occupier of the premises, should have and use the way which before been no issue
the making of the said order he had been accustomed to have and use, and of ^ill,nt.7i»>«*
right ought to have had and used. Replications^ taking issue upon the right natter in issue oo
of way in the two first pleas, and upon the agreement mentioned in the last, the defendant,)
At the trial at the Spring Assizes at Derhj/y a verdict was found for the plain- * »*><>«*<* *»»^
tiff; and the cause and all matters in difference were referred to an arbi- niifcs to the
trator upon the usual terms, who was to direct what was to be done in future. p**»n'»ff «!»«»
rrw - . 1 1 /• 11 irri • i • j i the other issues :
1 ne arbitrator awarded as follows : '* Whereas in the said action three issues ^i!f«M, that the
were joined between the plaintiff and the defendant, one relative to a certain '^^^SeJtorooJrtf
private way alleged to have been used for twenty years and upwards, and Uie Court for
another relative to a certain public way, and another relative to a certain con- 'ij^J^*')^jJ2^i»
sent and agreement; now I do award a verdict for the defendant upon the on the issue found
issue relative to the consent and agreement, and for the plaintiff upon the ^^sudi ^***"**
other issues. If there had been no issue relative to the said consent and •^•^ » sa<^
agreenoent, I should have awarded U. damages to the plaintiff upon the other ^^^^ '
issues. And I do further award, that the plaintiff do upon request, and at
the expense of the defendant, execute, by a proper deed and conveyance, a
grant to the defendant of such private right of way as is mentioned in the
third plea of the defendant, being that way concerning which in the same
plea it is alleged, that the plaintiff had agreed to and with the defendant, that
the defendant, by and with the assent of the justices in that plea mentioned,
should have and use it whilst he should be the occupier of certain premises in
the third plea mentioned." A rule was obtained by the plaintiff for judgment
mm olfitante veredicto on the third issue.
Kelly and N. R. Clarke, showed cause. — This motion cannot be supported,
whatever may be the legal effect of the justification in the third plea. The
verdict was taken, subject to a reference upon the usual terms ; that re-
ference baa been gone into, and the matter has been finally settled by the
arbitrator. Neither party, therefore, can make an application of this descrip-
tion again ; in effect the application is equivalent to bringing a writ of error,
which is prohibited by one of the usual terms on a reference ; it may there-
fore be considered to be in violation of the terms of that stipulation. If the
arbitnitor has done wrong, the only course woidd be, an application to set
aside the award. — [Coleridge^ J. — How could this objection have been taken
at all before the arbitrator, or how could he have disposed of it ?] — He
12
TERM REPORTS in the KING'S BENCH.
Steeple
V.
BONSALL.
King*i Bench, might have entered a verdict for the plaintiff, and directed judgment for the
defendant non obstante. — [^Littlcdale^ J. — How can we now give judgment for
the plaintiff, when no damages have been found ?] — That is one of the nu-
merous difficulties which occur, strongly showing the impropriety of meddling
with the proceedings after the case has been settled by an arbitration.
Clement v. Lewis (a) shows, that a writ of inquiry to assess the damages
would be necessary, even if the rule were to be made absolute. If that be
necessary the award cannot be final ; and this course is an indirect method
of setting aside the award. If this had been such an application directly
made, the time has elapsed, and it is now too late. Moseley v, Davis {b)
shows that there can be no arrest of judgment.
Sir W. W, Follett and G. T. fThite, in support of the rule, cited In re
Mackai/ (c).
Cur, adv. vuit.
Lord D£NMAN, C. J. afterwards (9th May,) gave judgment. — This was a
question of a right of way, and at the trial it was made the subject-matter of
a reference to arbitration. The arbitrator, by his award, has found a verdict
for the plaintiff on the two first issues, and a verdict for the defendant upon
the issue relative to a consent to use the right of way ; and he goes on to
say, — *' If there had been no issue relative to the consent and agreement, I
should have awarded Is. damages to the plaintiff on the other issues.** The
arbitrator, therefore, seems to have considered the third plea as not a good
plea ; but he has not, on the face of his award, reserved any point. The
application now made to the Court is for judgment on the third issue, non
obstante veredicto. It however appears to us, that it is not open to the plain-
tiff to come and make this application. The arbitrator's power was com-
plete, and his duty was to put a 6nal end to the matter ; he has done what-
ever the Court might have done, and iiis award is final, and an end of all
proceedings.
Rule discharged.
(a) 3 Brod. 6l BiDg.297. (6) 11 Price, 162. (c) 2 Adol. & Ellis, 356.
Lister v. Lobley and others.
The orda 'PRESPASS for entering plaintifr*8 close and pulling down buildings.
<' owner or pro. Plea: that the defendants acted under the authority of the trustees of a
S2STu*lf JSSf,;^!!. certain turnpike road, made under a local act, (the 5 & 6 Will. 4, c. xxxvi.)
suiou clause in a by which they were authorized to take possession of land and buildings for the
lu^e^'to^in-' purposes of the road, upon making satisfaction to the owners and proprietors,
dtcate the persons and that they had made satisfaction, &c., wherefore they had a right to enter.
I^tten*u toSr° Replication, taking issue thereon. At the trial at the last Assizes at York^
made for injuries before Lord DenmaUy C. J., it appeared that the plaintiff was the tenant of
arising out of the •
prosecution of the
act, hare not nrcrss^nly any technical meaning confined to the owner of the itiheritaucc, but must be
construed with reference to tlie general object of the art ; and may menu any perMn who itas any estate or
interest— as, for instauce, a tenant— in tlie land, who sustains loss or damage.
EASTER TERM, 1836. 13
the land and premises in question. A verdict was found for the plaintiff King*sBenek,
with nominal damages, subject to the opinion of the Court on the point, v^^/^/
whether the plaintiff was to be considered the owner within the meaning of Lister
the local act. Lob ley.
Cresswell now moved to set it aside, and enter a nonsuit, or to have a new
trial. The authority of the defendants, under the local act, is admitted ; and *
the first question raiscd.is, whether the plaintiff was the owner of the land.
The plaintiff was the tenant of the land, and the trustees having settled with
the owner, have done enough to justify them in taking possession ; it was his
business to settle with the tenant. The ^5th section of the local aict, like
the 8drd section of the «i Geo. 4, c. 1 26, gives the trustees the right to enter
upon lands or premises *' making or tendering satisfaction to the owner or
proprietor of such lands and premises for the use of the same, or for any
loss or damage they may sustain thereby ;" but in the local act the words
are limited to ** owners or proprietors,*' and do not include ** persons inter-
ested tlierein," as the words of the General Turnpike Act do, so that the trus-
tees, having made an agreement with the owner, the tenant must seek his
remedy elsewhere. The second question therefore is, whether a tenant,
having any right or claim of right against the trustees under a local turnpike
act, must not resort to the General Turnpike Act to recover from them, instead
of having recourse to this action of trespass. Now, the General I'urnpike
Act, 3 Geo, 4, c. 126, s. 83, allows trustees to turn persons out of possession,
without being deemed trespassers. The remedy of the plaintiff) therefore,
must be, not by this form of action, but by proceeding against the trustees
under the General Turnpike Act, the provisions of which are declared by
the 9 Geo, 4, c. 77, to be embodied in all local acts. The present action,
consequently, cannot be supported, and a nonsuit must be entered.
Lord Demman, C. J. — This is a motion for a nonsuit, upon two grounds ;
first, that the trustees, having settled with the ultimate owner of the land,
have done enough to satisfy the provisions of the local act of parliament ;
and secondly, that if the plaintiff had any claim for compensation, he must
enforce it, not by an action of this sort, but by a proceeding under the
General Turnpike Act. The first question raised on these points is, whether
the plaintiff is the owner or proprietor of the land, within the meaning of the
local act of parliament, so as to be entitled to satisfaction from the parties
who have taken his land from him. It appears to me, that, for the purpose
of receiving satisfaction for his land, he is an ** owner or proprietor *' within
the meaning of the act : '* owner and proprietor *' are words not of any definite
legal meaning ; a man may be the owner after the lapse of a long term, or
he may have a share or ownership in the term itself. It would be inconve-
nient and unjust to allow trustees of a road to make compensation to the
owner of the fee-simple alone, and so to deprive the tenant of any satisfaction
for damages from the loss of his land. Is it only in the character, strictly
speaking, of owner or proprietor, that he can receive injury or be entitled to
compensation ? 1 think thus even upon the clause itself. But take the clause
and the schedule annexed to and forming part of it, and then we find some
words which furnish a strong argument on the other side ; for in the sche-
dule the words adopting the form of expression in 3 Geo, 4, c. 126/8. 83,
A
14 TERM REPORTS in the KING'S BENCH.
JTlii^ Bmok. n«i ** owner and proprietor, and other person interested." But I am not
^■^s/^^ compelled to draw an argument from the use of these latter words in the
LiBTXE schedule, for it seems to me, that within the clause itself, the words '* owner
LoBLBY. ^^^ proprietor*' are not satisfied, without including such tenants as are in one
sense owners and proprietors of the land.
LiTTLEDALB, J. — ^Thc words of the act appear to me to embrace the
present case. The words '* owner or proprietor'* are not legal terms, but
are words of common parlance. A man is often said to be the owner, though
his rights may vary according to circumstances. In an action for tithes, the
common form of the declaration is, that the plaintiff is the proprietor of the
tithes, and you satisfy that allegation by showing that he has a lease of them.
Suppose that a man grants a lease of lands for 21 years, without reserving
rent, who is the owner of the lands during the term ? Certainly the person
in possession. He would be called so in common parlance, and therefore the
word *' owner" which is used in that, may in this act mean any person having
an interest in the land. The words ** owner and proprietor" do not necessarily
import that the person spoken of should be the possessor of the fee-simple,
but refer to all such persons as may be injured, and will therefore have a
right to compensation.
Patteson, J. — In looking to this statute, and endeavouring to collect the
meaning of the legislature, I cannot doubt that ^' owner and proprietor"
here sufficiently include the plaintiff. The persons entitled to compensation
are not merely entitled to it for the loss of the land itself, but also '* for the
use of the same, or for any loss or damage they may sustain thereby." The
plain meaning of this is, to afford compensation to persons who suffer tem-
porary damage from the acts of the trustees ; and who are these persons
likely to be but the tenants of the lands ? I have never yet seen a local act
of parliament on which discussions of this sort might not arise. Always,
invariably, there are some dozen of contradictory enactments in them. We
must endeavour to coUect the meaning of the legislature from a consideration
of the whole. The meaning of the legislature here is, that the damage sus-
tained by the landlord or tenant shall be settled for. They may indeed
settle with each other, as Mr. Cresswell has suggested, but here is no clause
giving the tenant the right to maintain an action against his landlord in re-
spect of any damage he may suffer, and he has no such right otherwise. The
legislature did not mean to put him in the situation of suffering damage, and
then to leave him without compensation. The compensation must be meant
to be secured to any person who is interested, and who has suffered damage.
Reddendo singula singulUf such must be the construction of the act.
CoLERiDOE, J. — I have no doubt upon the first point We must ascertain
what is the intention of the legislature in the use of these words. We must
consider that this is a local act of parliament, and is therefore to be construed
strictly against the parties who take strong powers under it, and in favour of
those who are likely to be injured by its provisions. What is the meaning
of the words ** owner or proprietor ?" The words are used in a clause
framed for the purpose of affording compensation to persons who are injured
by the operation of the act. Considering the object of the clause, I should
EASTER TERM, 1886. 15
ny, that any persons who are so injured in their interests, are, for the pnr- Kini^$ BmOu
poses of receiving compensation for such injury, owners and proprietors v^v^
within the meaning of the act. ^^
Rule refused. Lobut.
Evans v. Davies.
/9SSUMPSIT on a promissory note, made in 1809. Plea : the Statute of where a put pay-
*^^ Limitations. The parties were rekted by marriage, and the note in "*°^ t^*owJiV
question was given in the year 1809, on occasion of that marriage. There debt to anoUier,
were indorsements of the payment of interest upon the note up to the years JJ^J^^I^y JJ[j
1814 and 1818, and the indorsements for these two years were in the plain- onedemuid exiit-
tiff's hand-writing. From that time no payment had been indorsed ; but in j^ti^'^swi^lllrt-
the year 1881 the plaintiiTs son went to the defendant*s house, and having payment, ud the
found him in the garden, said that his father had sent him for a pound. The l^ul^bll'rer
defendant went into th6 house and brought out the money, and said, " This ^"ed to this ooe
puts old Mr. Evans and me straight for the last year's interest, all but 18«. the wonu lued do
I will come up next week and pay that, and get a receipt." The jury gave a "** ri'*"***^debL
verdict for the plaintiff. it shall be sofli-
denttotikeUoflt
of the Statute of
R. V. Richards moved for a rule to set aside the verdict and enter a non- limitattoni.
suit. These expressions, though accompanying the payment of a sum of
money, are not sufficient to take the case out of the statute. There is
nothing to show that the words referred to the note on which the action was
brought, or that the payment was in respect of that note. The sum paid on
the occasion referred to does not tally with any amount of interest due for
any one period on the note. The burden of showing that the expressions
apply to the debt in question, is thrown on the plaintiff. There is no proof
of that sort here. This case resembles that of Tippetts v. Heane (a), where
it was distinctly held, that in order to take a case out of the Statute of Limita-
tions, by a part payment, it must appear that the payment was made on account
of the debt for which the action was brought, and that it was made as part
payment of a greater debt. In that case it did not appear that there was
any other account existing between the parties, and the jury had therefore
inferred that the payment, which was clearly proved, must be on account of
that debt ; but the Court held, that it must not be mere matter of inference,
but that the fact must be clearly proved.
Cur. adv. trnlt.
Lord Denman, C. J. subsequently (22nd April) gave judgment. — This
was an action of debt on a promissory note. The plaintiff had a verdict, and
a rule was moved the other day, by Mr. Richards^ to set aside that verdict.
The Statute of Limitations had been pleaded to this action, and to take it
out of the statute a part payment was attempted to be proved. That proof
was, that the defendant was called upon by the plaintiff's son, who came to
Um when in the garden adjoining his house, and said, "My father has sent me
for 1/." The defendant went into the house and brought out the money, and
(a) I Cromp. Mees. & Rose. 252.
16 TERM REPORTS in the KING'S BENCH.
Kmg*t Bench, said, << This puts old Mr. Evans and me straight for all but }8s" It was
v^^^^ said that these words did not take the case out of the statute, and this argu-
EvANs njen^ ^^s rested on the authority of a case of Tippetts v. Heane in the -Ex-
Da vies, chequer f where Mr. Baron Parke held, and the other judges then concurred
with him, that it must distinctly appear that the payment was made on
account of the debt for which the action is brought. We have had a com-
munication with my brother Parke, and we think the two cases essentially
different ; and we think also, that the words in the present case are quite
sufficient to take the case out of the statute, the more especially as there
was no proof of any other debt existing between these parties. As there
was no other debt, the jury was warranted in referring this expression to
the debt of 100/., and the plaintiflT was entitled to recover the balance actually
due. There will, therefore, be no rule in this case.
Rule refused.
Bartlett V. Pernell.
Where an exe- /gSSUMPSIT, partly for goods sold and delivered to the amount of 140/.,
^ Si^J^ ora* an*l P^^'^'y ^^^ '^® ^"™ °^ *^'- ^^^ agistment of cattle. At the trial before
deceaied tesutor, Boliafidt B., at the last Spring Assizes for Somersetshire, it appeared, that
Siattho^^pur- the goods in question had been sold by auction, at the sale of the effects of
cbMM lo a ceriBin jjjg deceased ; that there were written conditions of the sale, in which, at the
amount of her time of the Sale, the auctioneer in the usual manner wrote down the name of
ieg*cy), and that j|,g purchaser. The defendant became the purchaser of goods to the amount
•hall be'w oflF-aet of 140/., and took away the different articles at the time of the sale. The
to her legacy; g^j^ lasted two days. Evidence was tendered that the plaintiff'had said, that
amoontsto a tpe- the defendant was entitled to a legacy of 200L under the will of the deceased,
dai contract as^to ^^j ^^^^ g|jg ^jjjgijt \y^^y goods to that extcut, and that the purchase should
ment,andmay'be be an off*-set against the legacy. This evidence was objected to as inadmis-
£^an acOon'for" siblc, ou the ground that it was evidence which went to vary a written con-
the value of the tract. The learned judge, however, received the evidence, and left the case
brou«ht*by*the to the jury. A verdict was taken for the defendant^ leave being reserved
executor, though ^q ji^g plaintiff* to movc to enter the verdict for either 40/. or for 180/., in-
anction,rubjectto cludihg the amouut for the goods, if the Court should be of opinion that the
written parUcniart gyidence relating to the declarations of the plaintiff had been improperly
of sale.
received.
Erie now moved accordingly, and cited Gunnes v. Erhart (a), where it was
held, that the verbal declarations of an auctioneer, at the time of the sale,
were not admissible evidence to contradict the printed conditions. In Powell
V. Edmunds (b), the same rule was adopted ; and it was held, that, on a
sale of timber growing in a certain close, where the printed conditions of sale
said nothing about the quantity, the parol declarations of the auctioneer, at
the time of the sale, warranting a certain quantity, were not admissible in
evidence, as varying the written contraxtif^{^Patteson, J. — In the cases cited
the contract is altered by the conversations, as respects all the purchasers ;
but in this case the defendant says, that she did not purchase at all under
that contract.] — In Shelton v. Livins (c) that objection was anticipated, and it
(a) 1 Hen. Black. 289. (6) 12 East, 6. (c) 2 Croinp.& Jer. 411.
EASTER TERM. 1836.
17
Bartlttt
V.
Pernell*
was there held, that the printed particulars under which a sale by auction King's Bench.
proceeds, cannot be varied by parol evidence of a verbal statement made by
the auctioneer at the time of the sale : and that it makes no difference that the
question arises on a sub-sale of the same subject-matter by the purchaser. —
[Lord Dtnman^ C. J. — But here the defendant says, that she purchased
under a contract specially made with her before the time of the sale.]— Tlie
auctioneer could do nothing before or after the commencement of the sale to
vary the written contract. Neither can the party who directs the sale.
Lord Denuak, C. J, — The jury must have found that the bargain was
made as to the whole matter, subject to the opinion of the Court as to the
admissibility of evidence of that bargain, under the particular circumstances
of this case. Supposing that to be so, I do not know why this bargain
cannot be proved. The auctioneer takes down the name of the purchaser at
the time of the sale. In some cases that would be binding on the purchaser,
for the auctioneer is the agent of both parties. But in this case it is not so.
There was a special agreement made by the plaintiff himself with the defend-
ant, before the sale, as to the mode of payment, and the sale to her must be
taken to be founded on that agreement. There is no objection to evidence
of the fact of such an agreement being made. It cannot be taken, as a
matter of law, that the auctioneer must necessarily in all cases be the agent
between the parties. He may be so, but that depends upon circumstances.
These circumstances show that in this case he was not the agent.
LiTTLEDALE, J. — The defendant here did not think that she was exempted
from the general conditions of sale, but only so far as the mode of payment
went. The purchase by her was, of course, put down by the auctioneer like
other purchases, in order that the plaintiff might know how much was to be
deducted from the legacy. But that did not put an end to the agreement, as
to how she was to pay for what she purchased.
Pattesok, J. — I do not think that this case will at all infringe on the rule
as laid down in the cases cited. An auction is in the nature of any other
sale, and the principle of law is, that if the sale takes place upon written
conditions, you cannot vary those conditions by parol. But that is not the
case here ; for before the sale there was a private agreement between the
parties, so that here the auctioneer was not, as in other cases, the agent
between them. In all the cases cited the purchase was made under condi-
tions of sale, which were proposed to be altered by parol ; but here the
defendant says, that she did not purchase at all under the conditions of sale,
but under a private contract made before the time of the sale.
CoLERiBOE, J. — The evidence was perfectly admissible. The writing of
the fact of the purcluuie by the auctioneer, in the usual manner, was quite
consistent with the purchase haviim^been made under the private contract
entered into between the plaintiff and the defendant, as to the mode of pay-
ment. The permission to the defendant to take the goods as an off-set
against the l^^y, was the mode by which the parties agreed that the de-
fendant should be paid her legacy.
Rule refused.
VOL. II. c
18
King's Bench,
The oveneen and
chardnrardenfl of
a parish have not
■och a apodal pro-
perty in the books
of account kept
by the aujveyor of
highways, under
the 13 C. S, c. 78,
8. 4B, and the 560.
3, c.69, s. 6, as to
enable them to
maintain trover
against a surveyor
who has gone out
of office, but who
refuses to deliver
up the books,
lliey must pro*
ceed against him
nnder the provi-
sions of these
statutes.
TERM REPORTS in the KING'S BENCH.
Harrison and another v. Round.
I^ROVER by the present churchwardens and overseers of Wedneibwry^
against the defendant^ for books of account, rate-books, &c.: Pleas: first,
not guilty ; second, that the plaintiffs were not possessed as of their own
property ; third, the Statute of Limitations. The plaintiffs took issue on all
these pleas. At the trial before AlderMm, B., at the last Staffordshire Spring
Assizes, it appeared that the defendant had been churchwarden of the parish
of Wednesbury, and in 1826 had been appointed the surveyor of the highways
of that parish. He continued in that office from Michaelmas^ 1826, to
1830 ; and again from 1831 to 1832. When the last year of office expired,
he attended a meeting of the vestry, and claimed a sum of 152/. as due to
him upon a balance of accounts ; and he insisted that he ought not to go out
of office, or to deliver up the books, without having some security for that
balance. Some of the members of the vestry entered into an undertaking
to secure him payment of the balance that might be found due to him : and
on his part he undertook to deliver up every thing he possessed relating to
his office. The money claimed by him had since been paid. The defendant
attended before the magistrates to be sworn to his accounts in December^
1 832 ; but they, not being satisfied with his statements, adjourned the matter
to a future period. There was an order of the vestry, on the subject of
these books, directing the defendant to deposit ** the vestry accounts and
vouchers for the years 1828, 1829, 1830, 1831, and 1832;*' and there was a
resolution of the vestry, that these " accounts and vouchers should be de-
posited in the hands of the churchwardens for the present time." Notice of
the meeting, and of the order and resolution, had been regularly given to the
defendant ; and a further notice was served on him, stating, diat if, within six
days, he did not deliver up these accounts and vouchers, proceedings would
be taken against him. He did not deliver them, but said, that the church-
wardens might get them as they could. It was objected for the defendant,
that this action was not maintainable at the suit of the churchwardens, for
that they had no such possession as would entitle them to bring trover. The
learned judge thought the objection valid, and directed a nonsuit.
Ludlow, Serjt. now moved to set it aside. The statute 58 Geo. 3, c. 69,
s. 6, which gives another proceeding against a person in the situation of the
defendant, does not take away the right of any person to bring trover. That
statute makes the books the property of the churchwardens for the time
being, and positively requires, that they shall be delivered according to the
order of the inhabitants in vestry assembled. — [^Coleridget J. — And imposes
a penalty, to be inflicted by two or more justices, upon the party guilty of a
refusal to deliver according to such order.] — Yes, but that is merely a cumu-
lative provision, for the statute goes on to say, that the party so offending
may also be proceeded against in any qf His Majesty's Courts, ** civilly or
criminally, in like manner as if this act had not been made.'* Suppose some
mere wrong-doer had obtained possession of these books, the churchwardens,
who, as guardians of the parish, have a special right of property in them,
might maintain trover against him. By the 13 Geo, 3, c. 78, s. 48, the sur-
veyor is directed to keep these books, to produce them for the inspection of
EASTER TERM, 1836.
19
Harrison
V,
Round.
Ae inhabitants, to verify the accounts before a magistrate, and then to hand King*t Benek,
them over to hb succe88or.^[Pa/to«ofi, J.— The words there are, ''church-
warden or overseer, in the singular numher.] — That makes no difference ;
the object of the act being, that the books should be kept in the public chest,
fiv die use of the parish. The overseers and churchwardens are the parties
who ought to have the custody of these books for such a purpose ; and,
therefore, they have a special property in the books sufficient to enable them
to maintain this action. The books are parish property. — [Coleridget J. —
Are they so when the surveyor's accounts have not been allowed ?] — But
here they have been allowed, and a sum of Zs. 6d, was allowed for the book
itself. The books are the special property of the churchwardens, and the
right of property in a chattel draws with it the right of possession, as in the
case of lead taken from a mine. The vestry here gave the order for the
books to be delivered up to the churchwardens for the year 1832. They
have since gone out of office, but their successors have the same right of
property in the books, and the refusal by the defendant is a good ground of
action* — [^Coleridge, J. — You rely on this as on a broken contract ; but there
is a case in the Exchequer, where the overseer brought (assumpsit against a
parishioner, and the Court held, that the action was not maintainable. The
undertakii^, if any here, was to the vestry and not to the plaintiflb.] — The
contract here is sufficient to make the breach of it amount to such a tort as
win sustain an action. If the churchwardens of 1832, 1833, had a title,
dieir successors have now the same right. — [^PattesoUf J. — The churchwardens
for this year might maintain an action for the church plate delivered four
years ago, fbr the churchwardens are a corporation for matters connected
with the church : but are they so for other purposes ?] — ^They are sufficiently
so in this case, particularly after the order of the vestry.
Lord DsNMAN, C. J. — It appears to me, that this nonsuit was perfectly
T^t. The plaintiffs do not, by merely showing that they have a right to
the custody of the books, thereby enable themselves to maintain trover for
them. The act says, that the books shall be kept by particular individuals ;
and enforces this order by a penalty, which, in case of disobedience, it directs,
that the out-going surveyor shall pay. It does not necessarily follow, that
that penalty is merely cumulative ; on the other hand, it may happen that the
person who has a right to enforce it may not be able to do more than get it
inflicted in the way directed. That might have been the very object of the
legislature, as it might be considered that it would be frightful if, for every
ease of detention of this kind of books or papers, there was to be a separate
action. There might possibly be some question, whether there should have
been a nonsuit on the second issue, as that stood alone ; but it depends upon
the other, and I see no reason for granting the rule.
LiTTLEDALB, J.— I am of Opinion that this nonsuit was perfectly right.
What does the statute 13 Oeo. 3, c. t8, s. 48, say ? it provides, that the sur-
veyor fbr the time being shall keep the books, which are to be delivered
orer by him to his successor ; and in case he shall neglect to do the things
thereby requhvd, he shall forfeit any sum not exceeding 5/., nor less than
^. ; and there are other penalties, for other defaults, provided in the sta-
tute. Tbere is nothing to show that this is cumulative. Though it is a
c2
20 TERM REPORTS m the KING'S BENCH.
King's Bench, breach of duty in the surveyor, on going out of office, not to deliver over the
'^^v^^ books ; still the special property which he has in them, by right of his office,
Harrison jg ^qj transferred till they are actually delivered up. As to the 58 Geo, 3,
Round. '^ declares the manner in which the books shall be kept when they are deli-
vered up, and who shall keep them ; but the penalty there given against any
person who shall neglect or refuse to comply with the directions of the act
is distinct in itself. But then it is said, that there is a proviso afterwards,
which declares, that any person who shall refuse or neglect to comply with
the directions of that act may be proceeded against, as if the act had not been
made. The first part of the section merely imposes a penalty if the books
are not delivered over ; and the second provides, that the party offending
may be proceeded against in the same way as if that act had not been made.
How is that? Why, he may be proceeded against under the IS Geo. 3, c.
78. The officers of a parish have no succession, so that they can be said
to succeed each other in the right to take proceedings of this description ;
and it appears to me, that till the books have been actually delivered over,
no property has passed.
Patteson, J. — The legislature has not thought fit to vest the property in
these books in any persons whatever. It is said, that, by one of these acts
the vestry may appoint the persons to have the custody of these books, and
that the churchwardens have been appointed for that purpose by the vestry.
But though the vestry may declare who are to keep the books, it cannot
declare who are to have the property in tliem. I do not see how the present
churchwardens can have the property in the books. Nor even how the church-
wardens of 1833 could have it, much less how it could be vested in their
successors. If we were to hold that the present churchwardens could main-
tain this action, it would be equal to saying that their successors would be
able to maintain an action of this kind for all the property, of whatever kind,
that might have come into the hands of their predecessors. My brother
Ludlow says, that he who has the right of custody of these books and papers
may maintain this action for them. I, however, cannot find it any where
laid down, that where a man has not the custody of property, though he may
be entitled to have it, he can maintain an action, like the present, to obtain
that custody. He may maintain such an action after he has had the custody
of the property, if such property is unlawfuUy removed out of his posses-
sion, but he cannot get the custody by such an action.
Coleridge, J. — To maintain an action, like the present, there must always
be a right of property general or special. What is the right here ? The
argument is, that the defendant is a wrong-doer, and that the books ought
to be delivered up to the parish officers, according to the provisions of the
statute, and according to the defendant's own undertaking. It is said that tlie
parish officers of 1832 might have sued for them. I doubt that very much.
But then, supposing this to be so^ it is said, tliat, if they could have sued, it
follows that the present plaintiffs, their successors, may sue. I do not think
tliat diey can. Though I should be sorry to dismiss such a case without the
fullest consideration, if I had any doubt upon it, I confess that I cannot doubt
upon elementary propositions like these ; and I know that this Court has, in
cases like the present, granted writs of mandamus to compel the delivery up
EASTER TERM, 1836. 21
of such documents, because the party applying had no legal title which he Kings Bench,
cocdd enforce in this way by action, though he might be otherwise fully v^/^
entitled to the documents. And if & mandamus was applied for, under cir- Harrison
cumstances like the present, the Court would not be stopped from granting Bound.
it, on the ground that the right to the custody of the books would support
an action like this.
Rule refused.
Hopkins v. Crowe.
A SSAULT and false imprisonment. Plea : not guilty. At the trial before a penon who u
Lord Denman. C. J. at the sittings at IVestminster after last term, it ""* '*** **.*"•' *^
. . an sdIomI CMiDot(
appeared that the plaintiff was a cab-driver, who had been permitted by a andertbe5&6
cab-proprietor to take out a horse and cab, on certain terms agreed on ^q'a**^'^*
between them : that the plaintiff returned at an unseasonable hour at night poUce^fficer to
with the horse in a distressed state, and showing that it had been cruelly ill- I^!^^^ ^Ibo*hM
treated. The defendant, who was the son of the cab-proprietor, demanded iii-trated it,
from the plaintiff the money agreed to be paid for the use of the horse and ^^^ ^w the
cab, and complained of the state in which the horse was. The plaintiff uitreatment in-
said that he had earned no money with the horse, and had none to pay to the case the hcmjuu
defendant. The defendant then called in a policeman and said, " There is ^^ "'* intenUon
a man who has brought me home no money, who has ill-treated the horse." giring Uie charge
The policeman said, " I have nothing to do with the money, but if you »ffo^» *>i" "^
*,,., °, ., '' "^ protection onder
charge him with ill-treating the horse, I will take him into custody." The the sututr, in an
defendant said, " I do charge him with ill-treating the horse." On which ~^on»f *«»?"*•
the policeman took him into custody. Upon going before the inspector, the
same complaint was made, and the same answer given as was given by the
ptdiceman, and the charge was taken " Cruelty to an animal." The charge
was subsequendy dismissed. The question was, whether the defendant was
justified in what he had done by the provisions of the 5 & 6 Will. 4, c. ^9,
passed to prevent cruelty to animals. By the 9th section of that statute it is
enacted, " That when and so often as any of the said offences shall happen,
it shall and may be lawful to or for any constable, or other peace officer, or
finr the owner of any such catde, upon view thereof, or upon th^ information of
any other person, who shall declare his, her, or their name or names, and place
or places of abode, to the said constable or other peace officer, to seize or
secure, by the authority of this act, and forthwith, without any other autho-
rity or warrant, to convey any such offender before any one justice of the
peace within whose jurisdiction the offence shall be committed, to be dealt
with according to law, &c." It was insisted that the defendant had acted
hcmA Jiit^ and ought therefore to be protected ; and the learned judge was
required to leave the question of hona Jidaf to the jury. He declined to do
10, but reserving the point, he left the case to the jury to say whether they
were oi opinion that the defendant's conduct was that of merely giving
infiimiation, or whether they thought that he had given the plaintiff into the
custody of the policeman. He said, that in the first case their verdict would
be finr the defendant ; but if they thought that the defendant had given the
22 TERM REPORTS ik the KINO'S BENCH.
Kin^i Bench, plaintiff into custody, they must find a verdict for the plainti£^ The jury
v^/^^ returned a verdict for the plaintiff, damages 5L
UoPKINi
Crowx. '^i'^ ^- Pollock now moved for a nonsuit. — There was no question in this
case whether in fact the horse was ill-treated, and the defendant was the son
of the owner of the horse. The defendant, in answer to a question from the
policeman, said, that he did charge the plaintiff with having ill-treated the
horse, and the policeman then took the plaintiff into custody. If the de-
fendant had heen the owner of the horse, the words of the statute would
have authorized him to take the plaintiff into custody, without the presence
of the officer. The defendant, not being the owner, did not attempt this,
but calling in a peace officer, he acted in accordance with the spirit of the
act, and must be protected in what he has done* — [^PaUeson, J. — The aet
requires that the person giving information shall declare his own name and
place of abode.] — ^That was not necessary here, for the defendant was at
home, and his name and place of abode were known. This case must be
governed by the principle laid down in Pratt v. HiUman(a), where a party
raising a party-wall was shown to have intended bondjlde to comply with the
directions of the building act, but did not in fact do so. He injured the
adjoining house, the owner of which brought trespass ; but it was held, that,
under these circumstances, the raising of the wall was to be considered as
done in pursuance' of the statute, and that the defendant was entitled to the
protection given by it. The statute here gives the officer the power to
arrest on view, or on information, and any one may give information to the
officer. The defendant did so here. — [Lord Denman, C. J. — The infor-
mation given to the officer is the substitute, so far as he is concerned, for the
view ; but what the defendant did here amounted to a direction to him to
take the plaintiff into custody.] — \_Patteson, J. — If a man said to an officer,
I charge this person with felony, and the officer took into custody the person
charged, the officer would be justified, though the man might not. This
defendant is merely in the situation of a stranger giving the f^aintiff into
charge.] — What the defendant said did not amount to giving tlie plaintiff
into charge. He merely gave to the officer the information which entitled
him to call on that officer to do what the statute authorized. The defendant
intended to do no more than the act justified him in doing, and he is diere-
fore entitled to protection.
Patteson, J. — This is a very clear case indeed. It is true that the
defendant told the officer something, but the officer declined to act on the
information thus given, and the defendant then took upon himself to direct
the officer to take the plaintiff into custody. The defendant made the officer
his servant for this purpose, and so made himself liable to an action of tres-
pass. If not, this action could not be maintained. Taking that to be so, is
he not within the operation of .this act ? The act gives protection to the
owners of the cattle and to police-officers. The defendant is neither the one
nor the other. But then it is said, that he thought he was acting bond JUk
upon the statute, and therefore ought to be protected. If that argument
eouid be adopted by the Courts, see to what an extent it would go. The
(a) 4 Bam* & Cress. 268.
EASTER TERM, 1836.
23
UoPKlNf
V,
Crowx*
game laws autborue the owner or hU servant to arrest persons who are King's BencK
fiMind shooting upon his grounds. Upon this argument, any stranger who
thought he was actii^ right in enforcing the provisions of the act, might take
upon himself to arrest a man whom he thought to be trespassing on another
person's property. But the law gives him no such right. The defendant
here having arrested the plaintiff as he did, and not having proceeded under
the stadtte, he has made himself liable to this action. The case on the
building act is quite different from the present, for there the person was
the peraon described in the statute, and meant to be protected ; but he took
a wrong step, and was protected merely as the proper person described in
the statute. The de£endant ia not so here.
CoLBEiDGi, J.— I am entirely of the same opinion. This case does not in
tlie least degree infringe on the authority of the case of Pratt v. Hillman.
The statute must be complied with in substance ; there need not be a strict
oonipliaoce with the very terms of it, in order to afibrd the person protection.
If a man give the officer information, and that information be overcharged,
atill, if it be bond Jide given in pursuance of the statute, the person would
be pfotected. But here the defendant has done more than merely give
infiimiation, he directed the officer to take the man into custody. Has
he a riglit to do that ? No, he has not ; for he does not come within the
descriptiQii of either of the two classes of persons named in the statute. The
fCfdict, therefore, was perfectly right.
Lord DsHMAN, C. J. — It would be entirely wrong if the law was not
what it is upon this subject, for when a man says, as the defendant did here,
^ he directa the officer to take another person into custody, he ought to
be fiesponaible ibr giving such a direction. Having thus occasioned the
arrest, and not being a person within the description of persons who by the
Matote are entitled to do so, he has made himself liable, and is not protected
ia what he has done. It is quite clear that the statute was meant to apply
only to the owner — to the person who saw the cruelty committed, or to the
viw acted upon infonnati<»i given him that it had been committed.
Rule refused.
CoL£B&ooK£ t;. Tick ELL and another.
GPECIAL case, stated under 3 & 4 Wilt. 4, c. 42, s. 25. Trespass, for i. jhe word
seising the goods of the plaintiff under a distress. The defendant, " hereditament/'
under the iSl Jac. 1, c. 12, and under local acts 11 Geo. 3, c. 15, and 46 do^^n^f*
Geo. 3^ c 89, pleaded the general issue. The case stated, that by 1 1 Geo. 3, pn>p«rtj Uabie to
c 15, certain commissioners were named and appointed for the purposes statute, need not
neccssarilj be
«ontnie4 in its large and legal tense, but when found with otl>er words maj be construed with tiiem as a
word ffntitm gnuru. Therefore, where a local act imposed a rate on every per»oa who ** should inhabit,
hoM, occopj, poeseai, or eujoy any laud, house, shop, wareliouse, or other building, tenement, or here-
riifaiifinr :*' it waa held, that the word *' hereditament** neaut only such as were capable of corporeal
CDjoyment, and did not extend to make liable lo be rated a money payment in lieu of tolls.
%, Hm •burden ot proving that a party i« liable to be rated by the operation of a local act of parliament
for property for which he wss never before liable to be rMted, lies on the party seeking to impose it.
3. Ptr CUtriigi, J. Ttie words of a local act of parliament, imposing a charge upon those who were never
before liable to it, shoMkl be so clear and express, that ilie Court should be able to see that the persons to
be cbvfMl luT« had due wandog of the Intention to chsrge them.
24 TERM REPORTS in the KING'S BENCH.
King*s Bench, therein mentioned, and a clause therein recited, that there was due, and of
^^*v^^ right belonged to the lord of the manor of Stepney ^ as owner or proprietor of
CoLEBRooxE (he market, a certain toll ; that certain other tolls were due and payable to
TicxELL. ^^^ householders and inhabitants : and it enacted, that a certain toll (in
amount including the three,) should be paid, in lieu of the tolls so due, to
the receiver or collector appointed under the act, the said receiver or col-
lector paying thereout to the lord of the said manor, or such other person as
should be owner or proprietor of the said market &c., the sum of Zd. By
another act of parliament, 46 Geo, 3, c. 89, certain trustees were appointed
to make rates for the relief, maintenance, regulation, and employ of the poor
of the parish of Whttechapelj &c. By the 53d section, the rector, church-
wardens &c., were required to make and sign three distinct rates or assess-
ments, not exceeding the amount of the respective sums so settled and
ascertained, '* upon all and every person who did and should inhabit, hold,
occupy, possess, or enjoy any land, house, shop, warehouse, or other build-
ing, tenement or hereditament, &c." The plaintiff is lord of the manor of
Stepney f and owner and proprietor of the market mentioned in the act of 1 1
Geo, 3, and was and is, as such lord of the manor and owner and proprietor
of the market, entitled to the sum of 2d,, clear of all charges and expenses,
for every cart or waggon loaded with hay brought into the parish, and sold
or exposed for sale there on the usual market-days, as in the act mentioned,
which the plaintiff has duly and regularly received, and which has yielded
to the plaintiff an annual profit, exceeding the sum at and for which he was
rated. I'he defendants were the justices issuing the warrants of distress &c.
for a paving-rate made under the 11 Geo, 3, and for a poor-rate under 46
Geo, 3. There is no ground for rating the plaintiff, unless the Court shall
be of opinion that he was rateable for and in respect of the said market, or
the said money payment in lieu of toll in respect of which he has been rated.
Sir IV, Folktt for the plaintiff. — The right to receive the whole toll is
vested in the commissioners, and the question is, whether the plaintiff is
liable to be rated for his sharc^ which he receives in lieu of the market tolls.
In the first place^ the plaintiff is not an inhabitant nor occupier within the
parish, nor is he an owner of property there^ except so far as he is entitled
to the sum of 2d, per load of hay out of the market tolls. The law now is
clearly settled, that an incorporeal hereditament is not rateable; Rex v.
Bell {a). Quit rents and profits of that sort are clearly not rateable. The
local act here has not made any diflerence. It is said, that under the term
" hereditament" the plaintiff is rateable in respect of these tolls. In the
first place, the market tolls here are not in the plaintiff: he has no power to
name them. They are, by the 1 1 Geo, 3, vested in the commissioners, who are
the occupants in respect thereof^ and are bound by the act to distribute them
in a certain manner. The mere right to receive the 2d, will not make the
plaintiff liable. It is quite clear that the word '* hereditament,'' in this clause
of the act, must be construed with tlie other words found in the same clause,
and must receive the same construction with them. If the legislature had
meant to make every hereditament rateable, it 'would have used words fit to
effect such a purpose. It would have been sufficient to say, that any one
(a) 6 Maule & Selw. 221.
EASTER TERM, 1836.
26
COLSBKOOKB
V.
TiCIELL.
who enjoyed any hereditament should be liable to be rated ; for all the rest King*t Ben^,
of the words would have been included in that expression. Many other
danses show that this is the proper mode of interpretation. In Rex v. jTAe
Mtmcktster and Salford Waierworks{a)f a meaning was given to the word
" tenement,*' which was read in conjunction with other words found in that
and in other sections of the act, and received a meaning as a word ejusdem
generis. And in JRej v. Motley (b), in which the word *' tenements" was used
in conjunction with the words '* houses, buildings, and gardens," in a local
police act, the owner of certain markets kept in the streets of Af., in which
various articles were exposed for sale by persons who paid him for that pri-
vil^^, but had not any stalls fixed to the ground, was held not the occupier
of a tenement within the meaning of the act, and therefore was not liable to
be rated in respect of the profits of such markets.
The AUomey-General, for the defendants. — The sole question is, what is
the meaning of the word '* hereditament" as used in Uie 53d section of the
46 Geo. 3, c. 89 ? Primd facie, the word '* hereditament" has an extensive
signification. The burden of proving that it has not in the present case,
Kes upon the plaintiff. In both the cases last cited, the words " occupiers
of" were used in the clause, which therefore related to the rating of occu-
piers of a tenement, and the sort of tenement intended was thus clearly
pointed out. Those cases therefore do not apply to the present, for the
words ** occupiers of" are not here. The words are '* inhabit, hold, occupy,
possess, or enjoy.'. Then, reddendo singula singulis, these verbs apply re-
spectively to ** house, shop, warehouse, or other building, tenement, or here-
ditament." The verb " enjoy" refers to the word '* hereditament," and the
man who receives a fixed sum from a house, is as liable as the man who
occupies the house. The first objection made on the other side is, that the
trustees should have been rated, not the lord of the manor. Bnt they are
clearly not liable. They have not any beneficial occupation or enjoyment.
The cestui que trustf the lord of the manor, is the person to be rated. In
Rex ▼• Shrewsbury (c), the Court refused to construe the word *' heredita-
ment" as a word ejusdem generis with others in the same clause. — [Coleridgef
J.<»That was, because a particular clause of exception showed, that in the
act there under consideration, it was not to be used in a restricted sense. ]-^
The word ** hereditament" has two meanings, and must not necessarily be
construed according to the more limited of them. The words here are not
** building, tenement, and hereditament," but " or other building, tene-
ment, or hereditament." So that by the use of the disjunctive, the word
" hereditament" is completely separated from the rest of the words in the
icntence, and must not be construed according to their signification.
Sir fV, FoUetty in reply. — There is no such separation between the different
words of this clause as to give some of them a different meaning from the
rest The close of the sentence now under consideration shows what is the
meaning of the term " hereditament," as used here. It declares that the
mte is to be restricted to such parts of the parish as are not within the
(•) 1 fiam. & Creii. 630; (6) 2 Barn. & Cress. 226. (c) 3 Barn, h Adoh 316.
26
TERM REPORTS » thb KING'S BENCH.
COLBBBOOKE
V.
TffXBLL*
King's BeiKk, liberties of the city of London* If *' hereditament" was to have the general
meaning now contended for, no such limitation could be fixed upon it.
Lord Dbnman, C. J. — The plaintiff must have judgment in this case, for
the rate has been improperly made. He certainly enjoys an hereditament,
in one sense of the term, but the kngruage of the act must be taken in a
restricted sense, according to the rule laid down in Reg ▼. The Manchester
and Salford Waterworks^ and Rex ▼. Mosloff and that class of cases ; and,
with respect to them, it appears, that to make a party liable to a rate for
property of this description, he must clearly be shown to come within the
description of an actual occupant. It is said that the words of the act are
large, and so they ou^t to be, for the purpose of raising any liability on
which to charge the plaintiff; for it lies on the party attempting for the first
time to impose that charge on him, to show that he is liable to bear it.
I am not able to say that he would be liable, but from the subject-matter of
the daose itself. ^The 33d section shows that the liability now contended
for must be restrained, for it says, that such last-mentioned rate (referring to
the pound-rate to be inqposed on property within the city,) shall be a pound-
rate accordmg to the value of the pnqperty to be assessed, as held or occupied
by parties within the said liberties. This shows that the words must be
if>plied to such tenements and hereditaments as may be the subject of cor-
poreal occupation. The pound-rate also applies to market-tolls, and it
appears to me that these words must be taken as an exposition of the
catalogue of words to be found in the same section^ so that the owner of
tolls does not ML within the description of persons to be rated.
LtTTLBBALB, J. — I do not doobt that the word *' hereditament*' is of it-
self sufficient to reach the tdls of a market, but the question is, in what
sense this word h used in the present act of pariiament. I think that it
most be construed according to the subject-matter of the whole sentence. If
it is foond among other things which cannot be described as hereditaments,
it must be confined and restricted in its applicadon to things of the same
natars as those with i^Hch k is foond united. I think that in this case it
means sonetlmg which can be the subject of actual occupation. The first
act, the I i Oeo. 3, whidi forms part of this case, is an act for the better
pavii^, &c of die district therein described. The d4di section, for the
puipose of defraying the charges and expenses thereby occasioned, antho-
riaes the imposition of a certain rate of Is. 6d. in the pound on the annual
nnts or Tables of ** any boose, war^ouse, cellar, vault, tenement, or other
heredkament." These words show that the term '* hereditament" is used in
the sense of the matters before mentioned in the first part of the clause.
But this is even more clear under the terms of the 46 Geo, 3, by which this
qoestion roust be decided. There die statute directs, that the trostees shall
aacenaatk the ^alne of the property occupied by the persons liable to be
rated. Tke tolb could not be oonsidered local property to be occupied.
Hien how are ^ese rates to be inq>os6d ? In the same way as rates made
under the statute oiEliz, Statutes made since the statute of Eliz. have from
time to time done away with the exceptions therein contained. That may
be right, but to create a liability in respect of any thing which was before
exempt from being rated, the liability should be shown by the party seeking to
EASTER TERM, 1886.
27
CouBftooa
TfOEBLL.
charge mnother tiwrewith, to be cmaltd by dear wMdt» hainog m clear A'tiif '< Bmek
meaning. Tbat is not ihown hi the preaent oaae. Here there are some
ivorda of importance—they are theae : '' Shall pay during the dme of such
occupatioii." Theae words show the meanhig of the legialatufe to be, that
the things to be rated should be things capaUe of occupation. I cannot see
soy where any intimation of the legislature having a different object in view.
PattssoK) J. — ^It appears to me that the plaintiff is dearly entitled to our
judgment. Previous to the year 1771, die phuntiff was lotd of the manor of
Stfpmoff and was entitled to receive Std. for each cart and waggon loaded
with bay, and exposed for sale within die parish. In that year oommis-
noners were appointed by act of parliament to regulate diese tolls, and they
lettled, that in Keu of all tolk whatever, a sum of 6d should be paid. Now it
ii conceded, that, pievious to the statute, the plaintiff was not liable to be
rated, and certainly he did not become under thb statute entided to the
tolls, or liable to be rated in respect of them ; for there is no clause in this
statute which authorines the commissioners to make a rate. I do not under-
stand that any argument has been raised upon any act prior to the 46 Geo. 3*
That act was then passed, and we are asked, on the general words of it, to
mtrodttce a new subject-matter of rate. We are to make this plaintiff liable to
a rate upon the word *^ hereditament" introduced in a local and personal act,
psssed behind die back of the lord of the manor, and thus to saddle him
with a liability to whidi he was never before subject. l£ the legislature had
any such intention, it is extraordinary that language was not used more
dttirly expressive of it ; and that those who sought to make a new charge on
what was not before rateable at all, should not introduce some express
enactment clearly to that effect. Yet they have not done so. Here are
woida Pedaling, that rates shall be imposed on all persons who '* inhabit,
hold, occupy, possess, or enjoy any land, house, shop, warehouse, or other
building, tenement, or hereditament.*' If it was meant that this should be
any tenement or hereditament, according to the legal meaning of the last
term, why put in all these words before them ? These words must be con-
strued as words ** ejiudem generis/* lliey must be so, according to the
authority of Rex v. The Manchester and Salford Waterworks and Rex v.
MosUy. Those cases must govern the present. The case of Rex v. Shrews-
hury does not apply : for diere^ some particular words used as an exception
gave a meaning to a part of the generd provision. That case is not an
authority to compel us to give the construction here contended for, which is
contrary to the meaning of die act, and affects the rights of those who were
not before liable.
CoL£KU)G£, J. — It is conceded diat ^ hereditament" means, ih the large
and legal sense of the word, an enjoyment ; but it is not denied, that though
diat is so, stin it does not necessarily and in every case have that meaning.
We must decide what is die meaning of the word in the present instance.
The plaintiff contends, with respect to somethii^ in the section itsdf, and
to the way in which the word is used in a previous act, that it must be
oonstmed in a restrained sense, and as a word ejusdem generis with those
whidi hare preceded it. On the other hand, it is contended that it must
hare a laiger oieniiiiig given to it, according to its legal import, beoause it is
28
TERM REPORTS in the KING'S BENCH.
COLBBROOKE
V.
TlCKELL.
King^s B$neh. just that all classes of persons and property should contribute to these rates.
Then the question is, on whom does the onm of proof lie. That is to be
determined by another question. What was the state of the parties before
the statute was passed ? It is conceded, that before this statute there were
church and poor-rates in this parish, and further, that this property was not
originally rateable. It is for those who would bring it within the sUtute,
and who seek to make a man rateable who was not rateable before^ to state,
in clear and unambiguous terms, their intention, so that the Court may see
that the persons to be charged have had due warning of that intention, to
enable them to oppose in time the passing of the act. A paving-rate per-
haps stands in a peculiar light, but it is as just that the parties should have
full notice as to that, as to any other new burden intended to be cast upon
them. No one who reads this act can doubt that the persons who are to be
assessed are the holders of particular local tenements, though the word
'* hereditament" is introduced afterwards in the latter part of the clause :
the party who pays is entitled to a deduction of one-third of the rent.
The word, therefore, is confined to the holders of corporeal hereditaments.
Then in the /)Sd section there is a specific provision as to a particular rate,
and it is conceded that that must have a local limit, for that is to be a
pound rate on all messuages, lands, &c. which are occupied within a part of
the parish which is not within the liberties of the city of London. I cannot
doubt, therefore, that these hereditaments are corporeal hereditaments
locally situated within the parish, and are not to be understood in the larger
sense of the term in the way in which tenements and hereditaments are some-
times understood. We have abundant right to say, that the burden of
proving this liability lies upon the defendants, and that they have not satis-
factorily performed their task in that respect.
Judgment for the plaintiff.
PiGGOTT V. Rush.
AMiummfU for ud- A ^SUMPSIT against an attorney for negligence in defending a Chancery
liqoidatad da- suit. Dlea^ the Statute of Limitations. Replication^ that at the time
wia!iDtheM^i^° of the accruing of the cause of action, the plaintiff was imprisoned, and that
daaM(*.7)oftfae she continucd so imprisoned until and up to 11 tb June, 1834, which day was
tatioDs.si Jm,i, the first time of her being at large afler the first accruing of the cause of
^' ^^' action ; and that she commenced the action within six years after the first
time of her being so at large. Rejoinder 9 that the plaintiff commenced the
action while she was so imprisoned, and continued so imprisoned, and
before the first time of her being at large therefrom, and that the several
causes of action did not, nor did any of them, accrue to the plaintiff at any
time within six years next before the commencement of the action, as in the
plea alleged. Special demurrer, alleging a tender of an immaterial issue, and
joinder.
Manself in support of the demurrer. — The rejoinder is unquestionably baJ,
and the question turns on the replication. The saving clause of the ^1 Joe.
EASTER TERM, 1836. 29
1» c. 16y 8. 7, excepts cases where the plaintiff is imprisoned at the time the King's Benek.
cause of action first accrued ; and the limitation does not begin to run v^v^
imtil he is at large. Chandler v, VileU (a) determines that the saving Picoott
clause applies to actions of assumpsit. Bush.
HayeSf contrd. — The plaintiff must bring herself strictly within the saving
clause. That only enables persons under the disabilities mentioned to pro-
ceed after tlie removal ; and it is on this record admitted by the demurrer,
that the action was in fact brought before the disability had ceased. The
saving clause ought to be construed strictly as well as the limiting clause.
This is an action of assumpsit for unliquidated damages, and that is not
within the saving clause ; that clause in terms speaks only of actions on the
case for words; and, although in Chandler v. Vilett it was held that an
action on the case on tusumpsit was within the equity of the clause, that was
merely indebitatus assumpsit: that case is therefore distinguishable, and
indeed can hardly be supported on principle, as its effect is to extend by
intendment, in a very forced manner, the express words of a statute.
[PaUeson^ J. — In Crosier v. TomUnson (6), the Court determined that an
action of indebitatus iusumpsit was comprehended in the term " trespass "
in the clause.] That certainly was done, but the same objection, on prin-
ciple, applies also to that case.
Manself in reply. — The saving clause relates to all such actions as are
enumerated in the limiting clause ; and therefore clearly applies to the pre-
sent action.
Lord DfNMAN^ C. J.— According to the authorities it is admitted to be
quite clear that an action of indehittUtu auumpsU is within the saving clause
of the statute. This may have been a strong conclusion to have come to,
but as it is evident that there is an omission by the legislature, and the
matter has been expressly determined, we should not be justified in over-
turning those decisions. I cannot see any distinction between an action of
vsdebiUUus assumpsit, and an action like the present in assumpsit for unliqui-
dated damages. I think, therefore, that we are bound by the authorities j
and must give our judgment for the plaintiff.
LiTTLSDALE, J. — I am of the same opinion. I think that we are bound
by the cases which have been cited, though I cannot say that I think they
were rightly decided.
Patteson, J.^I cannot see how we can decide that this case is not within
the seventh section of tlie statute, without overruling Chandler v. Vilett, and
Crosier v. Tomlinson, It has been attempted to distinguish these cases, on
the ground that they extend to actions of indebitatus assumpsit only, and not
to actions of assumpsit for unliquidated damages : but as both are equally
actions on the case, I think that these decisions are applicable.
CouRiDGSy J. — ^These cases have been followed ever since, by inveterate
(«) 3 Saand. 120. (6) 2 Mod. 71.
30 TERM REPORTS iir thb KIN0*S BENCH.
XkigUBmek. practice, and we cannot, after so long a period has elapsed* now overrule
them.
Judgment for plaintifT.
PlOQOTT
17.
Rush.
Haine t;. Davey and another.
1. Id tiwpMt npRESPASS, for seizing and taking a horse, harness, and divers goods
•gmiBst ovenms and chattels of the plaintiff. Pka^ not guilty. At the trial before Our-
JTa dittren^a *t^» B. mt the last Spring Assizes for the county of Cornwall^ it appeared
poor's rmte ; a de- ^^^ (\^^ plaintiff had purchased the property at a sheriff's sale, under a
goods were not Writ ofJUrifocias issucd against one Reed, of the parish of St. Neot^s, and
^^ ^V*?^ ^^ that the defendants were overseers of that parish, and took the soods in
Uie plalntin may ^ ' °
be given in evi- qucstion as a distrcss for a poor-rate due from Reed. Evidence was tendered
^^^'^enOtalue^t. ^^ *^® defendants that the sale was invalid, by reason of the execution being
wUhitanding the coUusivcly put in by a relation o(Reed*s for the purpose of defrauding his
°T. Su seems Creditors. It was objected that this evidence could not be properly received,
might any matter gincc the ncw rulcs, uudcr the plea of the general issue ; but {be learned
^xvVmw trial Judge thinking otherwise, received the evidence, and left the question of
win be granted on ooUusivc salc to the jury, who found a verdict for the defendants. The
the^dktwas valuc of the goods claimed appeared on the evidence to be 18/, A rule
•gainst evidence, y^^ obtained for a new trial, on the ground of misdirection, and that the
where the snbject- ,...••
matter of the ac- vcrdict was agaiust evidence.
tion appears on
iessthanso/..even BompoSf Serjt. and JV. M, Mannings showed cause. — The defendants were
biufa«^foi»d^^^ entitled to give the evidence in question under the general issue, by virtue
for the defiBndant. of the 4dd EUz. c. 2, s. 19. That Statute allows special matter to be given
in evidence under the general issue, in an action of trespass for a distress
taken for a poor's rate. In 3 & 4 WiU. 4, c. 42, s. 1^ which is the statute
under which the new rules were made, it is expressly provided, that the
rules are not to have the effect of depriving a party of that right, to give
special matter in evidence under the general issue, which by virtue of any
Act of Parliament he had before possessed. The argument used on obtain-
ing the rule was, that although the defendants might give in evidence any
matter which related to the defendants* character, by virtue of the statute
4dd Eliz, c. 2, 8. 19, yet that they could not, since the new rules, give in
evidence any matter which went to disprove the title of the plaintiff to the
goods ; that the latter was a matter which by the old rules of pleading, and
by the common law, overseers had the power of putting in issue by the
general issue, in common with the rest of the world, and that they did not
derive that power from the statute : and that the provision in the Act of 3
& 4 Will. 4, applied only to such matters as were by statute permitted to
be given in evidence under the general issue, and not to such matters as
might be given in evidence on that issue at common law. But the words
of the statute are general; and there is no such distinction as that contended
for. Then, as to the ground that the verdict was against evidence, the rule
cannot be maintained, because the subject-matter of the action appeared on
the evidence to be less than %0U ; and the circumstance, that in this case
the verdict was found for the defendants, makes no difference. The ordi-
nary rule of practice applies.
EASTER TERM, 1836. 81
Erie and Butt in support of the rule. — ^They abandoned the first pomt ; Kti^i Bmuk.
bat contended that the rule of practice as not to granting a new trial where ^^^v^^
the subject-matter of the action was under 20/., does not apply to cases Haine
where the verdict is found for the defendant. [Coleridge, J. — When the Datxt.
objection to the verdict is, that it is against evidence, the rule applies
equally, whether the verdict be found for the plaintiff, or for the defendant.
Lord Denman, C. J. — Certainly it does.]
Lord Denman, C. J. — On the first point, I think the learned Judge was
quite right in receiving the evidence in question. The defendants were
undoubtedly entitled, under the provisions of the statutes in question, to
give their whole defence in evidence under the general issue.
LiTTLEDALE, J. coucurred.
Patteson, J. — I am of the same opinion. There is no doubt that the
evidence in question was admissible under the general issue. I think every
matter of defence may be so given in evidence, not only under this statute,
—the words of which are very strong, — but also, wherever in any statute it
is said that the defence may be gone into under the general issue.
Coleridge, J. — I did entertain considerable doubts upon the question.
They have now, however, been removed. At the same time, I think it better
CO rest my decision on the words of the statute, and not on the ground taken
by my brother Patteson^ though I confess that he is more likely to be right
than I am.
Rule discharged on those points, but made absolute on another.
Owen and Wish v. Body and Griffiths.
pEIGNED issue under the Interpleader Act, on the application of the i. An inokaepet
Sheriff of Devon, to try the validity of a deed of assignment of pro- ^j^******* ^
perty for the benefit of creditors, made by a person of the name of /• made two of hu
Marchetth as against two writs of f. fa. issued at the suit of Body and of ^d^^wwwelnai'
Grifiihs. The deed bore date 6th November, 1 834, and after reciting that hi* «ute and
Marcheiti had for several years past carried on the trade and business of tmstT"^ teu ' **
an innkeeper and lodging-house keeper at Torquay ; that several actions '^^^ ^*J ibouid
bad been lately commenced, and judgments obtained against Marchetti, and advantai^eoas*?'
writs o£Ji./a. issued, and which were then in process of execution against «><*»?<» traat,»o
bit goods and chattels ; and also, that Marchetti was unable to pay off the should think it
taid debts, and had applied to the plaintiffs to pay off the same, &c. ; wit- J^^J^ "******
sesied, that for the considerations therein mentioned he, Marchetti, did continue and
grant, bargain, sell, assign, transfer, and deliver* unto Owen and IVish, all ^^ Md^^y wd
apply the monies
arising therefrorop 1st, In payment of the chai^ges of the deed ; Sdly, in redncUon orpayment of their own
debts i and 3diy, in payment of any expenses necessary for carrying on the b«siness, and the snrplns onto
and amongst themselves and all other creditors who should execute the deed within three months i—HgU,
tliat tbb deed was void, as it contained such an imposition of terms as no creditor was bound to submit to.
£. SemUe, that such creditors as did como in and execute would be partners, and subject to the bank-
rupt laws.
a. At the time the deed was executed Uie trader had omitted to renew his expired annual wine, beer,
and spirit licences, but at tlie next first opportunity they were renewed by tlie trustees -.-^HM, thai this
circBBstauce fonnfd no objection to the deed, on the gnrond that it was an assiganent to penont to cany
ov an illegal trade.
32 TERM REPORTS in the KING'S BENCH.
JTin^'f Bench, and singular the leasehold estate, household goods md furniture, stock in
OwENandWisn *''*^®» debts, sums of money, and other goods^ chattels, real and personal,
V. personal estate and effects, &c. with full power to enter upon the dwelling-
BoDY and house and other premises of Marclietti^ &c. to hold upon trust, when they
should think roost proper and advantageous to sell, &c. And upon further
trust, so long as they should think it desirable and advantageous to continue
and carry on the business of Marchetti, in and upon the said dwelling-house
and premises, in their or his names or name, and to pay and apply the
monies arising, in the first place, towards the paying off the*charges of the
deed, and of carrying the trusts thereof into execution ; and, in the next
place, to pay and retain unto themselves the sum of 155/. 17^. 5d, (the sum
advanced by them,) with interest ; and in the next place, to pay and satisfy
all such sums of money as in their judgment should be necessary to be
paid, laid out, or expended, for rent, taxes, wages, insurances, or otherwise,
in the continuing and carrying on the business of Marchetti^ and in main-
taining and keeping up his stock in trade, by purchasing horses, carriages,
and other articles and things, and to pay the surplus of such money so to
arise and be received as aforesaid, unto and amongst themselves, the said
Owen and IVish^ and all other the creditors of Marchetti who should have
executed those presents within three months from the date, rateably and
proportionably according to the amount of their respective debts, when and
so oflen as there should be sufRcient money in the hands of the said Owen
and Wish to pay 2«. in the pound, upon or in respect of the said debts, or
as oflen as thereunto requested in writing by the major part in value of the
said creditors, parties to the deed. The surplus, if any, to Marchetti, The
deed was executed by Marchetti and by Owen and fVish, and by three cre-
ditors, as parties of the third part. The writ of Ji, fa. sued out by Body
was received by the sheriff on the 29th Novemhery 1834, and the goods of
Marchetti were seized under it, when a person was in possession under the
deed of assignment. The writ of Griffiths was received by the sheriflTon the
S7th December, in the same year. At the trial before Patteson, J. at the
Devon Spring Assizes, 1 835, it appeared that Marchetti, an hotel-keeper at
Torquay, being in difficulties, executed the deed ; that at the time when
the deed was executed Marchetti had not renewed his expired licences, but
that at the first session held for the transfer of victuallers' licences, af^er
the date of the deed^ the licence of the inn at Torquay, kept by Marchetti,
was transferred to Owen and Wish. They, however, never took actual pos-
session themselves, but had been in possession and carried on the business
through William Bentick, from the time when the deed was executed. A
verdict having been found for the plaintiffs, with leave to move, a rule was
accordingly obtained.
Crowder showed cause.— He contended that the deed was not invalid on
the ground of fraud, nor under the 13 Eliz, c. 5, on the ground of fraudu-
lent preference. On this point he cited Ilolbird v. Anderson (a), and Pick-
stock V. Lyster (6). He also insisted that there was nothing to invalidate
the deed in the fact, that as Marchetti* s- licences had expired, the carrying on
the business was illegal ; because the neglect to renew the licences merely
subjected the party to a penalty for selling wine, beer, or spirits without.
(a) 6 T«nn iUp. 235. (6) 3 Maule & Selw. 371.
Owen and Wish
V.
EASTER TERM, 1836. ^ 33
Brie andR. V. Rkkards, contrd. — They contended that the deed was void, K'mgt Bench,
and on the first point was distinguishahle from any deed in any of the
cases upon the suhject, hecause the trustees were not to apply the interest
and profits of the business to payment of any part of the debts. The deed Body and
was evidently made to give time to Marchetti, and the effect of it was to Griffiths.
screen the goods of Marchctti from an execution at the suit of any of the
creditors who did not choose to come in. They said, also, that the deed
was void, because the nature of the clause for carrying on the business was
such, that any one who was a creditor, if he should sign the deed, would
become a partner in the concern, and liable to any persons supplying goods,
and would also be subject to the bankrupt laws. They also contended, that
as there were no licences, the trade was altogether illegal ; and cited Forster
V. Taylor (a), to show that the sale of what is forbidden by law, is void.
Lord Denman, C. J. — If either of the points which have been taken is
good, the defendants will be entitled to our judgment. I see nothing, how-
ever, in the objection, that by this deed an assignment was made to persons
to carry on an illegal trade : there is nothing whatever in the deed which
binds the parties to carry on an illegal trade. On the other point we shall
take time to consider.
Cur. adv. vult.
Lord Denman, C. J. aflerwards (/)th May) gave judgment on that point.
The question is, whether the assignment by Marchetti to the trustees was a
?alid assignment. On consideration of the reasons urged in argument by
the counsel for the defendants, we think that it was not a valid assignment.
It contains such an imposition of terms as no creditor was bound to submit
to; the rule therefore must be made absolute.
Rule absolute.
(a) 5 Barn. & Adol. 887.
Hough and others v. May.
j^SSUMPSIT, for work and labour, and on an account stated. Pleas : First, i- Oa an usue of
non assumpsit. Secondly, as to 8/. 11 5. parcel, &c. payment and ac- S^n*ey**in*d*i!^
oeptance of that sum in satisfaction and discharge of that sum, parcel, &c. charge, evidence
Keplicaium: that the defendant did not pay the said sum of money in the check having Lea
plea mentioned, in discharge of the said sum of 8/. 1 1«., in manner and form ^^^^^ ^^ ^^'
as in the plea alleged. At the trial before the Under-sheriff of Middlesex, piainuffforthe
it appeared that the plaintiffs' account amounted to 8/. 18*., and that several "JJJ^y'^'*" ^ „ .
applicationa bad been made to the defendant for payment. On the 7th balance :~h#/i/.
Nov. the defendant sent a check in the following form to the plaintiffs. wi'^^pJSy put
to the jary to fay
McMW. /)«»•«« and Co. 7th November, nS5. Z^^fU^
Pty Messrs. Hough and Co. balance account railing, or bearer, 8/. 11*. mowy ; Md the
£8 : 1 Ix. JViUiam May. {^ ut^.^""
the Court refused
a new trial.
S. To make a check amount to a payment, it must be aneonditional.
VOL, n. D
34
TERM REPORTS ik the KING'S BENCH.
King*t Bench.
HouoB and
others
v.
Mat.
On the Idth, the plaintiffs* attorney wrote a letter to the defendant, inform-
ing him that the check was lying at his office uncashed, and the defendant
might have it back. The under-sheriff left it to the jury to say whether
the check was received as payment of the 8/. 1 Is. The jury found their
verdict for the plaintiffs for 8/. I85., saying that the check was not re-
ceived as money ; and leave was reserved to the defendant to move to
reduce the verdict to 7«., if the Court considered that the check operated
as payment. A rule was accordingly obtained.
Petersdorff showed cause.
EUis^ in support of the rule. Pearce v. Davis (a), and Boswell v. Smith (^),
were cited.
Lord Demman, C.J. — There really is no doubt upon the matter. The ques-
tion at issue is, whether the plaintiffs have been paid to the amount of 8/. l^s,
The check of itself could not be any payment ; it must either hiave been
accepted at the time as money by the party taking it, or it must have been
afterwards paid. Besides, this was a conditional check for the payment as
a balance, and on that account could not be a payment, for the party was
not on that account bound to receive it.
LiTTLEDALE, J. coucurred.
Patteson, J. — ^The rule must be discharged on both grounds.
Coleridge, J. also concurred.
Rule discharged.
(a) 1 Mood. & Rob. 365.
(6) 6 Car. & Payne, 63.
Guest v. Elwes.
Tb« deciaraaon /^ASE against the Sheriff for an escape. The declaration only contained
one count, alleging an actual escape. At the trial before Alderson^ B.,
in an action for
aa escape, con-
tained only one at the Gloucestershire Summer Assizes, 1834, the evidence showed that
^^cape^agaioatthe there was a negligent omission by the sheriff's officer to make the arrest,
J^^oreridr*' ^^° ^' ^** ^^ ^^® power to have done so. Application was made to the
negiigentomiaakm learned Judge to amend the declaration in ac«^rdance with the evidence,
offi^S^e under 8 & 4 Wm. 4, c. 42, s. 23, but the learned Judge not Uiinking it a
the arreat when case in which he ought to amend, put the case to the jury, at the same time
directing them to find a special verdict, if they thought the neglect to arrest
had been made out. The jury found a verdict for the defendant, and also
a special verdict in the affirmative. A rule was obtained for judgment, ac-
cording to the special findingof the jury, for the plaintiff, with 30/. damages,
uonofanegUgent the record bemg amended so as to charge a negligent omission to arrest.
oaidiBion to die
jury, wlio fitmnd generally for the defend ani, and that fact in the affirmative ; and tho special finding was
indorsed on the record ;—HM, that the plalotiff was entitled to have a judgment entered according to the
ipcdal An^iBg.
lie bad it in hia
power to do so.
The jodge waa
applied to to
amend, but re-
fused to do so.
He left tiie ques
V.
£lwe8.
EASTER TERM, 1836. 35
Lmilam^ Serjt. and fF. Alexander^ showed cause {a). King's Bench.
Talfmard, Serjt and R. V. Rkkards, in support of the rule. ^"^"^
Cur, ado, vult.
Lord Denkan^ C. J., in this term (6th ilfay)delivered judgment.— This was
an application to the Court to enter judgment, according to the very right and
justice of the case, upon the special finding of the jury, that the defendant's
officer had been guilty of neglect, in not arresting a party when he could
aare done so, the action being brought against the defendant as for an
€«cape. It appeared in evidence, that the officer did not arrest the
I*rty, but that he neglected to arrest him when he had it in his power to
do so. The Judge was applied to to amend, which application was refused;
but the Judge left the question to the jury, whether the defendant had
omitted to arrest when it was in his power, and had the special finding of
the jury of that fact indorsed upon the record. We are fully convinced
that the defendant experienced no inconvenience whatever from the course
pursued by the plaintiff, and that he was not at all prejudiced in the con-
duct of his defence. We do think, therefore, that the plaintiff is entitled to
have his rule made absolute. Much doubt has been entertained by the
Court, as to whether they should not make this rule absolute upon some
terms ; but, on reference to the statute, it is clear that we have no power
under the statute to impose any terms. In the exercise of his discretion,
the learned Judge, at the trial, has permitted the special finding of the jury
to be indorsed upon the record, and the Court will follow up that discretion,
by entenng judgment accordingly. Judgment will therefore be given for
the plaintiff.
Rule absolute,
(fl) In Hilary Term.
In re Jamieson and others.
IN an arbitration, the submission was of the matters in difference between i. An umpire wjis
the parties " to the award of two arbitrators, or of such other as they 2* wwequMiirif
the arbitrators should, before entering upon the reference, by a memorandum ^ agreement by
in writing under their hands, to be upon the submission indorsed, nominate, jhi, ^as not *
aid appoint as an umpire in that behalf," " so as the award of the arbi- ^J'*^]^" °'^J^°*'
trators should be made in writing, ready to be delivered ** on or before a partie*, but wa»
certain day. "And in case the arbitrators should not make such their ^^"Jy^Jj^e^F^y
tvird within the time, that the parties would abide by and observe the applying to set
•ward of such person as they the said arbitrators should, in manner afore- whe*n!*howTIlJ,'
aid, nominate, elect, and appoint as umpire.*' The arbitrators were not the umpire wa«
iWe to agree upon an umpire. They agreed that each should put down on a J^J^^^iy X
separate piece of paper the names of any four persons he pleased, and that they j«cied to by the
arbitrator ap*
pointed by that
party ; and that fiMt was not known to tlie attorney :—H«itf, that there waa not a sufficient assent to the
mode of appointment, because the whole facts were not within the linowledge of the party ftsientlng ; and
consMinenUyf that an award made by an umpire so appointed, was bad.
t. QiMr«^ whether the attorney bad power to bind hb client by such an assent.
D 2
36 TERM REPORTS in the KING'S BENCH.
King'i Bench, each should be permitted to strike off one of such names, and that they
v^/^/ should toss up for the choice of the umpire out of those remaining. This
In re ^j^g done, and the umpire who made the award was nominated umpire in
and others, that way : but, when it was done, he was specially objected to by the arbi-
trator who was appointed on behalf of Jamieson, The course pursued was
entirely without the assent or knowledge o£ Jamiesoriy but Mr. Earl, the
attorney appointed by him to attend the reference, and who did attend the
whole proceeding, had a knowledge previously of the way in which the
umpire was appointed, though he was not aware that he had been objected
to by the arbitrator of his client. A rule was obtained for setting aside
the award, on the ground that the appointment of the umpire was illegal.
The Attorney-General and W. H. WatsoUf showed cause. — The doctrine,
that the appointment of an umpire by chance is bad, as laid down in Ford
V. Jones (a)y has been qualified In re Tunnoand Bird{h), In that case it was
held, that such an appointment was good, if known to and acquiesced in by
the parties. Here the fact was known to Mr. Earl the attorney of Jamieson^
who attended the whole proceeding; and was therefore equivalent to a
knowledge and acquiescence by Jamieson himself. In the case of In re
Hick (c), it was held, that an attendance on an irregular proceeding in an
arbitration, with knowledge of the facts, amounted to a consent.
Sir W, FoUett and Hoggins^ in support of the rule, relied on the fact, that
Earl had no knowledge that the umpire appointed had been expressly
objected to by Jamieson's arbitrator. They also contended, that the know-
ledge and implied assent of Earl to the proceeding could not be binding on
Jamieson^ because he was merely appointed to attend the reference as an
agent, and had no authority to bind his principal in the manner contended for.
Lord Denman, C. J. — It is certainly not desirable that the choice of an
umpire should ever depend, in any degree, upon chance : but if two parties
are proposed, and the arbitrators choose one by lot, and that is known to
the parties, and they consent to the appointment being made in that way, I
cannot see any thing to make void an award made by an umpire so appointed.
In the case of In re Tunno and Birdf an award was set up notwithstanding
this objection, because both parties were fully aware of the course which had
been pursued. In the present case, however, it is a very important fact, that
Jamieson himself had no knowledge whatever of the way in which the ap-
pointment had been made ; and that a very material circumstance was kept
from the knowledge of Mr. Earl the attorney, who attended the reference
for him, even if the assent of the attorney to the proceeding would have
been sufficient. If that circumstance had been known to Mr. Earl, the ques-
tion might have been raised, whether he could, in such a case, have bound
his principal. Under all the circumstances the award was bad ; and the
rule must be made absolute.
LiTTLEDALE, J. — I am of the same opinion.
(a) 2 Bam. & Adol. 248. (c) 8 Taunt. 694.
{b) 6 Barn. & Adol. 488.
EASTER TERM, 1836. 37
Patteson, J. — I thought that the case of /n re Tunno and Bird had settled King*$ Beneh.
this question, but it seems that it has not. An appointment made as v^^/^
diis was, may be rendered valid by assent ; but then such assent can only be ^° ^
with a full knowledge of all the facts ; and in the present case, a very mate- andoihers.
rill hct was wholly unknown to the party who is alleged to have assented.
Coleridge, J., concurred.
Rule absolute.
was
Wandsborough and another v. Maton.
T'ROVER for a bam by the executors of the former tenant against the Ai»rnofwood,
owner of the freehold. Fleiu : first, not guilty; second, that the plain- erected by »'te-
tiflTs were not entitled. At the trial before Gumey, B., at the Sprimr Assizes "wt oa suddies.
•; . ' ^° or blocks of stone
lor Wiltshire in 1835, it appeared, that the barn in question was a wooden with capt» some
and thatched barn, and was what is called a staddle barn, erected on blocks Jh/ilIrf^^J*^the
of stone ; some of which stood on the surface of the soil, some a few inches sou, some a few
in the ground, and others on a foundation of bricks and mortar, rendered ^"d'°mnd
necessary by the unevenness of the ground. The whole of the timber work others on » foon-
rested entirely on the staddles by its weight alone, and could be removed and^ortv.ren*
without removing the caps which were aflBxed to the staddles by mortar. ^^^^ necessary
The learned judge thought that the barn was a chattel which might be of the ground.
removed by the tenant, but he reserved the point. A verdict was found for ^V******* **^ '***
the plaintiff*. A rule for a nonsuit was accordingly obtained. ed entirely on the
staddles by its
weight alone, and
Erie showed cause. He cited j4mos and Ferrard on Fixtures (a), Culling v. oouid be removed
TuffnaU(b), Davis v. Jones (c), and Penton v. Robart {d). ^T^^"^^
were affixed to
MerewetheTf Seijt. and W. M. Manning, in support of the rule, relied on nortar:— h««
Elmes V. Maw (e), and distinguished the cases cited asainst the rule. that the wood-
^ ' ® ° work and thatch
of such a bam
Pattesok, J., in the course of the argument, referred to the case of Rex ^•» »<>' **««<* "
T. Ot!ey(J')y in which a pauper rented a windmill, and a brick cottage and ^a. a chattel, fat
garden, at the rent of 30/. per annum, for six years, and durinir that time ^j>»ch trover
? ,, J . J . 1 ,1 J *, rr.. , mlghtbemain-
neJd and occupied the same, and actually paid that rent. 1 he cottage and uined.
garden, with the mill, were together of more than the annual value of 10/. ;
bat, exclusive of the mill, they were not of that annual value. The mill was
of wood, and had a foundation of brick ; but the wood-work was not inserted
m the brick foundation, but rested upon it by its own weight alone. No
part of the machinery of the mill touched the ground, or any part of the
foundation. It was held, that the windinill not being affixed to the freehold,
nor to any thing connected with it, was not parcel of a tenement, and conse-
quently that there was no settlement gained.
Lord Denman, C. J. — It is impossible to lay down a general rule which
(a) Page 2. (d) 2 East, 88.
(6) Bal. N. P. 34. (e) 3 Kasl, 38.
is) 2 Bam. & AkL 165. (f) 1 Barn. & Adol. 16.
38
TERM REPORTS in the KING'S BENCH.
WaNOSBO'
BOUOII
V.
Maton.
King's Bench, can be applicable to all cases, and not liable to distinctions arising from the
particular circumstances of each case. The question is, whether this bam is
a part of the freehold. It does not appear to me that we can properly con-
sider that it is. It is a mere chattel placed on the freehold, and removeable
without injury to it. Were we to hold otherwise^ indeed, we must overrule
the case of Rex v. Otley, which appears to me to be an authority.
LiTTLEDALE, J. — The tenant may have done wrong in first removing the soil
to place the staddles on which this barn stood, and may have subjected himself
to an action by that act ; but whatever may have been the legal consequence
of such an act, that is not the question now. Here there was nothing
whatever to fix the wooden barn to the freehold, and there was no need of
disturbing any portion of the soil in order to take the wooden building away.
If the tenant had made holes in the brick-work, and the wooden building
had been let into the brick-work, it is not necessary to say how far he might
not have been entitled to remove it. That, however, is not the case in the
present instance. The building merely rested upon the brick-work.
Patteson, J. — I am unable to distinguish the present from the case of
Rex V. Otley, in which the point in question was expressly decided. In that
' case the wooden mill rested upon brick-work, but was not inserted in the
brick foundation. The Court there held, that the mill was not to be con-
sidered as part of the tenement for the purposes of conferring a settlement.
That is a very strong case, inasmuch as the whole mill and ground itself
were the subject-matter of demise to the pauper as one tenement.
Coleridge, J. — By law, in the absence of any custom or exemption in
favour of trade, a tenant is not entitled to remove any building which may
have been afHxed to the freehold by him. Whether a building is such as, in
point of law, is to be considered affixed to the freehold, is a question depending
on the facts of the case. In this case I do not consider any thing but the
wood-work as constituting the barn. I think that the bam consisted of the
wood-work, and of that alone. If so^ it was not affixed to the freehold, and
the plaintiffs are entitled to keep their verdict.
Rule discharged. '
A prohibition lies
to an Ecdesiasti-
ciil Court, where
the question of
custom or no cus-
tom is distinctly
rmised on the face
of the libei and^
answer.
Rhodes v, Oliver and another.
PROHIBITION. The defendants were churchwardens of Mottram^
where disputes had arisen respecting the church-rates. The parish was
composed of eight different townships. The defendants were libelled in the
Spiritual Court, and it was alleged that there was a custom to charge the
different townships in separate proportions. The answer denied the custom,
the making of the rate, the election of the churchwardens, and every fact
stated in the libel. A rule for a prohibition had been obtained, on the
ground that the Ecclesiastical Court could not decide on the facts put in
issue on the face of the libel and the answer.
Starkie showed cause. — There is nothing which should prevent the Ecde-
EASTER TERM, 1836. 39
tiastical Court from proceeding in this case. In The Churchwardens of King's Bench.
Market Bonoortk v. The Rector of Market Bonoorth{a), the libel stated, that ^^^/'^
there was from time whereof &c., and is a chapel of ease within the parish ; Rhodes
that the rector of the said parish, from time whereof &c., hath repaired, and Olivbb.
ought to repair the chancel of the said chapel, and that the chancel being out
of repair, the rector hath not repaired it. The defendant denied the custom.
A prohibition was applied for and refused, and the judgment of the Eccle-
siastical Court was enforced. In Comyns Digest (6), it is said, that a pro-
hibition will lie if the Ecclesiastical Court proceeds to the trial of a matter of
fiict, for to that it is not competent. But custom or no custom is not a
matter of fact, but of law. In Jeffrey^ case (c), this Court took the opinion
of the Spiritual Court as to whether Jeffrey was by law a parishioner of
Hmfiaham for the purpose of tlie reparation of the church.
/. Jervis in support of the rule. — The custom, the mode of rating, and the
&ct that the rate has been made substantively, as alleged in the libel, are all
denied by the answer. The very origin of the custom is denied, for the
existence of the church before the time of legal memory is distinctly put in
issue. The question, therefore, raised on the libel and answer is, what period
can be said to be the period of legal memory ? Now that is a question
which this Court will not permit the Ecclesiastical Court to decide, for the
Ecclesiastical Court would fix one period, and the common law another. The
question can therefore only be tried in a Common Law Court. The case
in Lord Raymond is an authority in favour of this application, for there the
principle now stated was distinctly recognized ; but it was said that the Eccle-
siastical Court having already found against the custom, there was no danger
from the Ecclesiastical Court in that case allowing a custom which the
oommon law would disallow.
Lord Denmak, C. J. — ^This seems the very case in which the Court below
ought not to be permitted to proceed. The principle on which the Courts
of Common Law have acted in questions like the present, has been, that the
Ecclesiastical Courts are not to be allowed to set up one period of prescrip-
tion, when the Courts of Common Law will only recognise another. There
is nothing here to show that the Ecclesiastical Court would not adopt a rule
oi prescription different from that which is allowed at Common Law. The
principle of the case of The Churchwardens of Market Bosworth v. The Rector
rf Market Botmorth (a), is in favour of this application. The prohibition
most go.
Per Curiam. — Rule absolute.
(•) 1 Lord RaytD. 435. (c) 5 Co. Rep. 67.
(fc) riu Frohibition (F 14.)
40 TERM REPORTS in the KING'S BENCH.
King's Bench.
Wallis and another v. Broadbent and another.
In asnmptu, the /ASSUMPSIT. The declaration stated, that'one Elizabeth FUdridge, in her
declaration Btttted %/jL ,.« ^. • j /• ^i_ • • ^i. j i • • i j
the terms of a life-Ume, was seised of the premises in the declaration mentioned, and
ceruin agree- qjj ^^g jgj N&ocmher, 1820,by Certain articles of agreement, asn-eed to demise
ment of demise iii»j iiii iii*! i»
between A. and tlie Same to the defendants, to hold tlie same imto the defendants, their exe-
the defendants, cutors, &c., from 1 1 th Octobcr then last, for the term of one whole year, at
that A. after- «. -ttj !•• !• ."ii
wards died, and the rent of 63/., on Certain husbandry conditions therein mentioned ; and
piaintifls *'n^^^ that the Said agreement should continue in force for one year more, com-
chat defendants, mcucing from the 1 1 th October then next ensuing, and so on from year to
thaT"ufntiffr° y®*^» ^° ^^"8 ^ ^^'^ parties should agree, upon the terms and conditions
would permit thereinbefore specified and contained. That the defendants entered into
euj^ uiepre-*" posscssiou, and that Elizabeth Eldridge devised the said premises to the
miscs. agreed to plaintiffs and died, and that plaintiflTs entered into possession : that on the
diUoM then "*° 11th day of October, 1830, in consideration that the said plaintiffs, at the
agreed upon, and request of defendants, would permit the said defendants to hold and enjoy
ditk>m according the Said messuagc and premises at the yearly rent of 60/., upon all other the
to tlie tenor and i^Yvas and couditious therein mentioned, the defendants promised the plain-
effect of the first ..111 1 /. 11 1 1 1 1..
agreement. titfs to abide by, observe, and perform, all other the terms and conditions,
iffTdauto'did according to the tenor and effect of the said articles of agreement, ^//c-
hoid.&c. BrtMk, gationt that defendants did hold on such conditions until 11th October, 1834.
of theM^UoM. breach, non-performance of the said conditions. Plea : non assumpsit. At
p/ea, general the trial at the Lincolnshire Spring Assizes in 1 83^, the agreement was
Iljon this r«!ord' offered in evidence, but rejected on the ground of not being stamped ; and
the plaintiffs were j^jg plaintiffs uot having givcu other evidence of the terms of the original
what th« condi. agreement, they were nonsuited, on the ground that on the form of the issue,
tionsinthe first proof of the Original agreement was absolutely necessary in order to sustain
and not being able the action. A rulc had siucc been obtained to set aside the nonsuit and have
to do so. were ^ ^^^ ^^^^1
riglitly nonsuited.
Miller how showed cause against the rule. — In order to maintain this
action, it is absolutely necessary for the plaintiffs to show the terms on which
the premises were originally let by Mrs. Eldridge, The declaration avers,
that the defendants held upon the conditions contained in the original agree-
ment. What those conditions were, became therefore at the trial a material
question. There was no evidence to show what they were, for the agree-
ment itself was rejected because it was without a stamp, and the plaintiffs
had no other means of proving them. The nonsuit was perfectly right.
Humfrey and J. Bayley, in support of the rule. — The question as to the
original agreement was not raised upon this record. The agreement as to
the letting at 60/. a-year was an agreement made in consequence of a propo-
sition to plough up certain lands. That agreement was made between the
plaintiffs and defendants on this record, and of that agreement there was
ample evidence. All that was stated in the declaration respecting the
original agreement, was merely stated by way of inducement. In Winn v.
White (rt) it was held, that in an action against a tenant for not performing
(fl) Sir W. Black. 840.
EASTER TERM, 1836. 41
lis agreement, the estate of the lessor is an immaterial averment, if the King*$ Bench,
tenant has had the firuit of his lease. All the terms and conditions here are v^s^^
merely stated by way of inducement. — [Lord Dcmnan^ C. J. — It is rather Wallis
more than inducement when the terms and conditions are stated in this way.] Broadbent.
— ^The plea here does not put the introductory part of the declaration in
issue. In Jones v. Brawn (a) the defendants, afler alleging that M, had
been declared a bankrupt, and that they had been appointed his assignees,
jiisd6ed taking the goods as belonging to them in that capacity. Plaintiff
replied, that the goods belonged to him and not to the defendants, and it was
held, that upon this issue it was not incumbent on the defendants to give
formal proof of M.'s bankruptcy and of their appointment as his assignees.
The case of Bamett v. Glostop {b) is an answer to the present rule. There
it was held, that in assumpsit for the price of a copyright bargained and
sold, a defence, on the ground that the copyright was not assigned in writing,
most be specially pleaded. Lord Chief Justice Tindal there said, " This is
not a denial in &ct of the existence of the contract, but a claim to be dis-
diaiged from it, because the formalities which the law has prescribed have
not been observed." The principle of that case is fully decisive of the
present.
Lord Denman, C. J. — It appears .to me that the new rule, describing
what the plea of non assumpsit shall not be considered to deny, does not dis-
pense with the necessity of proving the original agreement for the premises.
The declaration sets forth that the defendants agreed to perform certain
covenants. To that the defendants have pleaded that they did not promise.
How can the plaintiBs show that they did promise ? Why, by showing that
the premises were formerly let upon certain terms^ and that the defendants
Uxik them from the plaintiffs upon the same terms, changing only the amount
of the rent. To do this they must show what these terms were. It is not
by calling this statement of the terms a statement by way of inducement,
that the necessity for proving it can be prevented. The statement must
refer either to the precise agreement to which the defendants were parties
with Mrs. Eldridge, or to the present agreement with the plaintiffs, which
embodies the former ; and in either case, the plea of non assumpsit amounts to
a denial of the agreement.
LiTTLEDALE, J. — I am entirely of the same opinion. The plea of non
assumpsit puts in issue here all the facts stated in the declaration, the agree-
ment, and the holding. It is said, however, that according to the new rules
the plea of non assumpsit operates only as a denial of the matter of fact —
that there is no express contract here, but one implied by law, and that being
impUed by law, the terms must be imderstood to be those on which the pre-
mises were formerly held. It seems to me, that if the contract is implied
by law, it must be implied to be upon the terms of the old agreement, and
therefore the old agreement should be shown. There was no proof of that
agreement, and therefore the nonsuit was right.
Patteson, J — I think that the nonsuit was right on the particular evidence
(«) 1 BiDg. N. R. 484. (6) 1 Bing. N. R. 633.
42 TERM REPORTS in the KING'S BENCH.
King*s Bench. ^^ ^^^^ ^^^* Here is an allegation of an express contract, but there is no
v^v^ evidence of an express contract at all, and therefore the plaintiff has been
Wallis nonsuited on the issue of tion assumpsit. The only evidence here was, that
Broadbbnt. there had been an old holding from some person or other at a rent of 63/.
a-year, and that 60/. a-year had been afterwards received as the rent.
There is no evidence, however, of the agreement under which the 60/. came
to be received. There is evidence, that when that had been received, an
application was made by the defendants to be allowed to plough up certain
lands, and it was agreed that they should be allowed to do so on the pay-
ment of 5L a-year more rent, but not one word was said at that time about
any thing else. The contract proceeded on in this declaration is the contract
on this change of the situation of landlord. They cannot go on that contract
without evidence of the express agreement between the parties. The plain-
tiffs are obliged to rely on the implied contract. Then the non assumpsit denies
all the matters of fact from which the implied contract may be implied by
law. If so, then it is necessary for the plaintiffs to prove the original terms of
the holding, and the transfer of the tenancy, and that the defendants continued
to hold the premises with the exception of' the mere change in the amount
of the rent, upon all the old terms of the original agreement. This is like
the common case of a lease for seven years, at the expiration of which the
tenant holds on, and where the acceptaBQe of rent aflerwards implies a con-
tinuance of the tenancy upon the old terms. If the plaintiffs rely upon
that, they must prove what the old contract was. I do not mean to say,
that if upon this declaration there had been proof of the express contract in
so many words that the defendants should hold the premises at a rent of 60/.
a year on the terms of the old agreement, that that would not have been
sufficient to maintain this action. I incline to think that it would, but that
is not the case here, and, under the circumstances here, I think that the non-
suit was right.
Coleridge, J. — I am of the same opinion, and for the same reasons. The
distinction in all these cases is to be inferred from the circumstances of the
declaration, and the necessity of there being an express statement of the
terms of the agreement. If there had been an express promise to hold by
the terms of the original instrument, the mere production of that instrument
might have been sufficient to maintain the action. I do not say whether it
would or not, but here there was not that proof, and the plaintiBs only
inferred an agreement of that sort from the circumstances of the continued
holding. I do not think that from that circumstance alone, under the
peculiar facts of this case, the jury would have been warranted in drawing
the inference which they required. There are other objections in this case,
but it is not necessary to state them.
Rule discharged^
EASTER TERM, 1836. 43
King^t Bench,
Jones v. Shears and three others.
jfSSUMPSITf to recover 400/. for sleeping rent, on an agreement for a i. whether »
lease of a coal mine, the coal in the mine not being fairly worked out. u*S^id u°n j'^*'^'
Second plea : that the defendants, in accordance with a power given to them lease holds over,
for that purpose by the agreement, had given notice, during the continuance tenant or no" u a
of the term, to wit, on the 2^th Aprils 1829, of their intention to put an question of fact
end to the term at the expiration of two years from the time of giving the 2?Th?'ietters
notice. Replication : that the defendants, after ahxns the notice, abandoned ®^ » p*"°° ^^^
■ -1* t -» -» . ^, .« "» one year acted
such notice, and then assented and agreed to a contmuance of the said term, u the agent of »
and of their tenancy to the plaintiff. Issue thereon. company, are not
•' •• evidence to affect
other per-
At the trial of the cause before Coleridge, J. at the last assizes for Car- J^°*,jJj,**JSIt
mariheny it appeared that the defendants, the parties constituting the Llan- company in the
gennech Coal Company, became tenants to the plaintiff, under an agreement EuTwho weronot
to grant them a lease of all the coal under certain tenements called Caenmydd proved to be mem-
and Caergorsef in the parish of Uangennech, with a power in the defendants ti^^henthe^
to put an end to the term by two years' notice. On 1st April, 1829, notice *«»«" ''^^
was given by the defendants that they should deliver up possession at the
expiration of two years from the date of that notice. It appeared that the
defendants continued to work the coal under Caenwydd until the 24th June
following. The evidence as to the mode of working mines, showed, that as
the tenants proceeded, they usually left pillars standing to support the upper
nirface ; and that it was the custom for the tenants to cut away as much of
such pillars as they could, with safety, on leaving the mine. The only work
which the defendants did in the mine afler the expiration of the notice, was
to remove some of the coals from several of these pillars. In order to show
the intention of the defendants to hold over after the terra, in the capacity
of tenants, a letter of the 16th July, 1835, signed by a Mr. Seymour, was
tendered in evidence. It appeared that he was agent to the Llangennech
Coal Company, and had been so about eighteen months ; that the company
carried. on, during that period, the same works as before; and the witness,
examined as to this matter, said, that he was not aware of any change in
the names of the firm. The company might not consist of the same parties
as it did at the time of the notice, but it was proved that two of the de-
fendants were members at the time of the date of Seymour's letter. The
learned Judge thought that there was not sufficient evidence to constitute
Seymour the agent of the four defendants ; and he left it to the jury to say,
whether the taking away portions of the pillars by the defendants was done
with the intention of clearing the work already completed, or with the
intention of continuing working. If the jury should be of the latter opi-
nion, they would find for the plaintiff; but, if they thought that the work
referred to had been done with the intention solely of completing what had
been begun, they would find a verdict for the defendants. The jury found
a verdict for the defendants.
fPlUon moved to set aside this verdict and have a new trial, on the
ground of misdirection and rejection of evidence. When a party holds over
44 TERM REPORTS in the KING'S BENCH.
King's Bench, after the expiration of a lease, whether that lease has expired by efflux of
^^^v'^ time, or in consequence of any collateral matter, the holding over is matter
J0NB8 q£ \^^^ 2Q^ should not be left to a jury as a question of intention. In
Shears. ^g^y ^* Atkinson (a), it was so treated by Lord Ellenhorough^ and the ver-
dict in that case was giv^n under his direction. In Right d. Flower v.
Darby (b), Lord Mansfield said, *' If there be a lease for a year, and by
consent of both parties the tenant continue in possession afterwards, the law
implies a tacit renovation of the contract." It is so here, and was there-
fore not matter for the consideration of the jury, but of the Judge. [Zt(-
iledale, J. — The mere fact of entry by a party who claimed a right to enter
for a particular purpose, would not make him a tenant.] The acts of
ownership exercised here, are such as cannot be qualified by any claim of
right for a particular purpose. The intention of the landlord, and not of the
tenant, must be taken into consideration, to determine the question whether
the tenancy continues. Then as to the rejection of evidence : for the pur-
pose of showing what was the intention of the holding over, a letter, signed
by a Mr. Seymour^ was offered in evidence, and the question was, whether
he was sufficiently the agent of the defendants, to make the letter written
by him evidence against them ; he was their agent ; the parties giving
notice to quit were the members of the company. The notice was served
on the 24th Aprils but the company remained in possession from the 24th
April to the SOth June, beyond the period of the two years stated in the
notice. It was said that the company was not formed of the same persons,
when the notice was served, and when the action was brought ; but it was
proved that two of the present defendants were members of the company at
that time; that was sufficient to justify the admission against the de-
fendants, of a letter written by the agent of the company.
Lord Denman, C. J. — I am of opinion that there is no ground for dis-
turbing this verdict. It was impossible not to leave it to the jury on the
issue which was upon this record, whether there was any waiver of the
notice or not. The jury must decide upon all the circumstances before
them, whether the defendants continuing 'their working in the mine was
with the intention of clearing the work, or with the intention of going on as
before as tenants. Whether the parties meant to be tenants or not, is cer-
tainly a question of evidence, of which the jury alone could be the proper
judges. With regard to the point upon the rejection of evidence, the notice
signed by the four defendants was in 1829, and they ceased to work in
1831. Seymour was the agent of the company in the year 1835, that is, of
the present company. Without proof that the present company consists of
the same persons as they did in 1831, his letter is not admissible against
them. Though he is agent for the company for all the purposes for which
they employ him, that is to say, during the time of his employment, he is so
only in respect of those who arc the members of the company, and he is
not the agent of all the members of the company for all time. The rejection
of this evidence was quite correct.
LiTTLEDALE, J. — I am of the same opinion : after the expiration of the
(a) 4 Carap. 275. (6) 1 Term Rep. 159.
EASTER TERM, 1836. 45
tenancy, whether the tenant holds over under the same terms as before or ^*'»^** Bench.
not^ is a matter of law for the Judge to decide, and, generally speaking, he . "^^
does decide it, but he is not necessarily bound to do so. If the tenant holds y.
under a lease, and holds over after the expiration of the term, the law Shears.
generally implies that he holds over upon the same terms as are contained
in the original lease ; and, generally speaking, there is no doubt that he
does hold over on the same terms. In the case cited from Campbell, the
rent was raised and some other particulars had been changed on the holdiu^jr
over; and there Lord EUenborougk thought that the change of rent did not
do away with the covenant to repair. But suppose most of the cove-
nants to be changed, I do not apprehend that it is a necessary inference of
law, that if part of the agreement is changed, all the rest is changed also.
But here the question was not upon what terms the defendants held over,
but whether they held over at all. The question was, for what purpose
they continued in possession, and that is a question to be inquired into and
decided by a jury. The mode in which they exercised acts of ownership in
the mine was fairly left to the jury, for them to say whether those acts were
done with the intention of continuing the works or not. On the issue
joined here, the question was, whether the defendants had waived the notice
to quit, and had by their conduct agreed to continue, and whether they had
exercised acts of ownership over the property ; surely all these were ques-
tions of fact for the jury. Then with regard to the letter : the notice was
given in 1829 to quit in 1831, and up to that time the defendants continued
members of the company; but subsequently there was a new firm, and
Seymour became the agent to the new firm ; two of the members of the old
firm then went out, he could not be agent for that old firm, yet still it is
said, that as two of them remained, he can by his acts bind all the four : I
do not know that that follows. The firm is carried on in the same name,
but it may be composed of different members, and the agent of the company .
at the present time has no right to bind all the members constituting the
firm at a former period.
Patteson, J. — This is an action to recover sleeping rent, on an agreement
entered into between four defendants. The defendants have pleaded, that
they gave a notice in 1829, determining the tenancy under that agreement,
and the plaintiff has replied to that, a waiver of the notice, and the ques-
tion arises upon the evidence given on this issue on the record. It is con-
tended, on the part of the plaintiff, that the mere fact of the defendants
being proved to have taken away coals from the mine after the notice
had expired, made it necessary for the Judge to say that that was conclusive
to show that there had been a waiver of the notice, and that they were so
working the mine as tenants. I do not find any authority requiring him to
say so. The authority cited may appear to establish this doctrine, that
where there is in fact a continuance of the tenancy after the expiration of a
lease, the parties holding over must be considered as holding under the terms
of the old lease; but the question whether the parties continued in posses-
sion as tenants, must be a question for the jury, to be determined from the
circumstances under which they did continue in possession. It might have
been under some supposed right, or it might have been that they knew
themselves trespassers, but chose to continue notwithstanding. In this case
46 TERM REPORTS in the KING'S BENCH.
King*i Bench, it appeared that the mode of working the mine was leaving a number of
Y^"^^ pillars, and the defendants appear to have considered, that according to the
^^ custom they had a right to take away part of die coal of which these pillars
Sheaks. were composed, after the expiration of the lease, in the same way as a man
goes upon land to take away what he has left there in the course of hi^
tenancy. This is matter for the consideration of the jury. It was impossible
for the Judge to take upon himself to say that this conduct of the defend-
ants was in itself a waiver of the notice to quit. With respect to the rejec-
tion of the letter, it appears clearly that Seymour never was the agent of the
four defendants under this agreement, for he did not become their agent
until 1832: how then can an agent of a company, working some other
place, be the agent of the four defendants, who had not before worked that
place? It is not proved that all the four defendants were at the time of
tSeymour's letter members of the company, and consequently, though he
might be the agent of the company, he was not their agent, and his acts
will not bind them. On both grounds the verdict is right.
CoLERiDOE, J., concurred.
Rule refused.
Lewis v. Lady Parker.
Where, in an tc /tSSUMPSIT^ by the indorsee against the acceptor of a bill of exchange.
exchai^e, the plea ^»**^ pfeo : «o» assumpsit. Secoud plea: that one John Miles drew,
ahowt the bui lo ^^^ defendant accepted the bill, for the mere accommodation of defendant,
•ocommodatioii and in order that MiUs might get it discounted, and thereby raise money
bill, bat does not thcrcou for the usc of defendant, and without Miles havi^e iriven any value
•how fraud in its .,. , t* t •% t> t t » \
inception, a plain, or consideration whatever for the defendant s accepting the same, at any
tiff is not bound ^j before or since ; and that Miles afterwards indorsed the bill, without
to begin bj going •""*' " ' ^ ^ ^ '
tuto proof of con- consideration, to W. M, Elkins, in order that Elkins might discount the same
sidention. ^^^ ^^^ ^^^ ^^ ^^ defendant : that Elkins received the bill from Miles for
the purpose of discounting the same, but did not at any time discount the
bill or pay the defendant, or Miles, any sum of money whatever for or on
account of the bill, nor in any other manner whatever give to the defendant
or to Miles value or consideration, in the whole or in part, for the said bill ;
and, on the contrary thereof, Elkins, having full notice of all the premises,
indorsed the bill to the plaintiflT, in fraud of the defendant, and the plaintiff
received the bill by indorsement from Elkins after it became due ; and con-
cluding with a verification. RepUcation : that Elkins indorsed the bill to
the plaintiff before it came due and payable, the plaintiff not knowing the
premises in the plea mentioned : — traversing that the plaintiff took and re-
ceived the bill by indorsement from Elkins, after it had become due, as the
defendant had alleged ; and concluding to the country. Issue thereon. At
the trial of the cause before fVilliams, J. the question arose upon these
pleadings, as to which party was bound to begin to prove the case, and
his Lordship, after recommending the plaintiff to give evidence of consider-
ation^ in the first instance, which was declined by his counsel, directed the
jury, in the absence of any evidence of a contrary nature on the part of the
defendant, to find a verdict for the plaintiff.
EASTER TERM, 1836. 47
Barstow moved to set aside this verdict, and have a new trial. — The bur- King's Bench.
den of proof lay upon the plaintiff. The cases of Mills v. Barber ; Bounsall s^s^i^
T. Harrison ; and 7t// v. Rawlings, are all now depending in the Courts Lewis
upon this sii^le question of who is to begin in a case of this kind. In one ^^ Parvsr.
of these cases, liord Abinger nonsuited the plaintiff, because^ on a replication
that the bill was indorsed for value, the plaintiff did not offer evidence to
support the allegation. That ruling cannot be impeached. It is true
that in another case Mr« fiaron Alderson did just the reverse, and ruled as
in this case, but this last ruling cannot be supported. In Simpson v.
Ciark (a), the plaintiff did offer some evidence ; he afterwards wanted to
raise the question as to the person on whom the ontu lay, but the Court
would not decide it, as the plaintiff having given evidence, had prevented its
decision from being a matter of necessity, but the inclination of the Court
was, that the burden of proof was on the plaintiff. In Whittaker v. Ed-
numds (h), Mr. Justice Patteson, at Nisi PriuSf refused to put the plaintiff
upon proof of the consideration, because the defendant, the acceptor, had
not shown that there was no consideration between the drawer and himself,
although he proved several of the indorsements to be without consideration.
When that case afterwards came before the full Court, consisting of the
Lord Chief Justice, and Littledale, Taunton^ and Williams^ J J., a rule for a
new trial was refused. {^lAttledale, J. — That case differs from this, for
there the only special defence was a notice to dispute the consideration,
and the Courts have long held that a mere plea of want of consideration is
nothing, and will not alone compel a plaintiff to go into proof of considera-
tion.] It does so to that extent, but on that very account it is in favour of
the proposition now contended for. Here the plea is more than a mere plea
of want of consideration ; it directs the attention of the j plaintiff to the
matter which he ought to prove^ and by his taking issue upon it, he bound
hhnself to prove bis title to sue upon the bill. The circumstances here, too,
supply the only thing that was defective in Whittaker v. Edmunds, for here
it is shown on the plea, that there was no consideration between the drawer
and acceptor. There is enough, therefore, to call on the holder to prove
consideration.
LordDfiKKAK, C,J. — In cases where fraud is proved, in the inception of
the billy a suspicion is thrown upon its subsequent possession, and, in such
cases, the holder must do what he can to get rid of the suspicion. That
does not appear to be the case. As there is no case exactly in point, re-
qniring as, in circumstances like the present, to compel the holder to go
into proof of consideration, we think that we ought not to grant the
rale.
Per Curiam. — Rule refused.
(a) 2 Cromp. Mees. & Ros. 342; and 1 Gale. 237.
(k) 1 MoQ. & Rob. 366 ; aod 1 Ad. & £11. 638.
48 TERM REPORTS in the KING'S BENCH.
King*8 Bench,
^-v** The King v. The Justices of Staffordshire.
stattt^^i^*a R^''^^ ^^^ ^ mandamus to be directed to the defendants, commanding
(Mjty the right of them to enter continuances^ and hear an appeal. A church-rate had
SeSmiT onnatico ^^'^ made ; and one Simpkinsoriy a person liable to be rated, had been called
beiag given, that upon to pay the sum of 3s, llj^d, as his proportion of the said rate. Under
to^eTwTlny ^^^ 53 Geo. 3, c. 127, 8. 7, he appealed against the rate. The order of jus-
new conditiou of ticcs, for the payment, was made on the 6th April, and the notice of respiting
poMd by^lutute. ^^ Order and appealing was dated on the 7th. The Sessions were appointed
2. On an appeal to bc held on the 30th June; and on the 20th the appellant gave notice to
against a church- One of the magistrates who had signed the order, and to the then existing
nte, under 5» churchwardens, that he should try the appeal. On the appeal coming on, he
7, notice of the was Called ou to prove his notice ; and he proved due notice upon the church-
«^peai was gira wardens, and upon one of the magistrates, but not upon the other, whereupon
two magistrates the Sessions refused to hear the appeal. The practice at the Sessions re-
to«etterii^mak- quJ'^cd sevcu^ays' uoticc of appeal before the General Sessions, exclusive of
ing the order ap- the day of holding the Sessions, but did not say to whom notice was to be
pealed against :— -^^^
!»itf. that the given.
Sessions were
toheLM^aw^a?* Whatcly showed cause. The question is, whether the rule made by the
on that ground, justices is a reasonable rule. There is no doubt that it is. It is reasonable
that the justices who make the order should have full notice given them of
the intention to dispute the order ; and that notice ought to be given to each
of them, that each may have an opportunity to defend his own judgment.
Wightman, in support of the rule, was stopped.
Lord Denman, C. J. — It seems to me that the magistrates are clearly
bound to hear this appeal. The appellant has fully entitled himself to have
it heard. The right to appeal is given by statute ; and it is not competent
for any Court of Justice to require a new condition, before allowing any of
the king's subjects to come into Court to pursue a right which the law has
given him. There is nothing in the statute requiring this service of notice
on the two jusiices ; but, if there was, the appellant has done sufficient to
entitle himself to its benefit.
LiTTLEDALE, J., concurred.
Patteson, J. — The legislature has been silent as to the time of notice,
and as to the parties to whom notice is to be given. The act declares, that
the party may appeal to the Sessions ; he has given every reasonable notice,
and he is entitled to have his appeal heard.
Coleridge, J. — Not only the statute, but the rule of practice, is silent as
to the number of persons to whom notice is to be given. That being so,
the notice is sufficient. If the magistrates act together upon a joint autho-
rity, notice to one of them is notice to both.
Rule absolute.
EASTER TERM, 1836. 49
King*i Bench,
Wise v. Charleton.
/tSSUMPSlTy on a promissory note by indorsee against maker. At tlie An int^ment
trial before Lord Abinger, at the last Derby Assizes, it appeared, that mand rjiromwe to
the action was brought on an instrument in the following form: — "On p«y to j.g. jr., or
.'=' »»ri>-*ri 11 /• order, the sum of
demand I promise to pay to mi. John u. Johnson, or order, the sum ot leo/., wich lawful
120/., with lawful interest for the same, for value received; and I have >ni<'re»i for the
1 -iiii/*!!* /• *••"*» ™'' value
deposited in his bands title-deeds to lands purchased from the devisees of received; andi
WiUiam Toplis, as a collateral security for the same." The note was in- Ilf^hatdTtiut- '"
dorsed by Johnson to the plaintiff. It was properly stamped with a promis- deeds to lands
scry note stamp, and had also on it a mortgage stamp, which had been ^^^evisees of
affixed on payment of the penalty. It was objected by the defendant, that tv-T., asacoi-
the instrument, not being an absolute and unconditional promise to pay forthesame/'^is
money, was not a promissory note, assignable under the statute ; and that » promissory nou
^* ,*^ 1 , , • . tninsfer.blc by
It was not properly stamped, because the mortgage stamp was requisite to indorsement.
make it producible in evidence ; and that had been affixed after the instru-
ment was complete, which, as it was a promissory note, the commis-
sioners of stamps had no power to authorize. The learned judge overruled the
objections, but reserved the points ; and a verdict was found for the plaintiff.
Whitehurst now accordingly moved for a nonsuit or for a new trial. He
referred to the statutes giving power to the commissioners of stamps to
impose stamps on documents, 2^ Geo. 3, c. 49, s. 14 ; 31 Geo. 3, c. 25, s.
19; 37 Geo. 3, c. 136, s. 1 ; and 55 Geo, 3, c. 184, s. 8 ; and to the cases of
Green v. Davis (a), and Butts v. Swann (6).
Lord Denman, C. J. — There is no doubt that this is a promissory note,
and that it has aright stamp upon it. There is not any thing which qualifies
it so as to take away its character as a promissory note. It is a distinct
promise to pay a certain sum on demand.
LiTTLEOALE, J. — I am of the same opinion. There is a distinct promise
by itself, absolute in the first instance, and being so, it is properly stamped
as such. Then, as to the statutes authorizing the commissioners of stamps
— those acts only prevent a note from being stamped after it is made,
no stamp having been put upon it at the time it was made ; but
they do not prevent the commissioners from impressing a legal stamp
upon an instrument which has already got a stamp, though a wrong one,
upon it. The case of Butts v. Swann is quite different from the present.
There it was not found that the instrument had been stamped. There was
DO incorporation here of any qualification upon the promise, and no diflBculty
•nses upon that point. It is not necessary to enter upon the consideration
of the question, whether it was requisite to have a stamp, as upon the
amgnment of a mortgage.
Patteson, J. — This instrument is not less a promissory note because
(«) 4 Ban. & Ciw. 235. (6) 2 Brod. 6l Bing. 78.
VOl. II. E
50 TERM REPORTS in tue KING*S BENCH.
King*i Bench, there is something else written on the same paper. The cases referred to
are those where the instrument had no stamp at all. Here it had one.
Wise
V.
^ ' CoLERibOE, J. — Ifit isagood promissory note, that is sufficient for this action.
It is so, although there is, at the end, incorporated into it a memorandum,
which, however, is no qualification of tlie promise. That is merely for fur-
ther security. You could not say, if a man added to a clear promissory
note the words, " 1 have given you this in payment,** that that would not
be a promissory note.
Ride refused.
Doe d. Barron and others v. PuRCHAsand others.
1. A docket of "pJECTMENT. At the trial before Ga«e/ec, J., at the Spring Assizes,
d<^ket"of th^'* 1835, for Kent, it appeared, that the lessor of the plaintiff was tenant by
judgment, within elegit, Under a judgment in an action of covenant, against Sir Gregory Os-
c so, M» u to give ffome Page Turner, signed in Hilary Term, 1819. The covenant was entered
precedence to the jnto with Joseph UoweU, in March, 1807. In October, 1819, Honell died,
orer otiier 8ub»e. ^nd on the 25th of May, 1 820, administration was granted to Mary Oswin,
u^r^Md*^****" one of the lessors of the plaintiff. In May, 1828, the judgment was revived
s. It is the duty at her suit. On the 30th of May judgment was executed, and an inquisition
of the piainUflF'8 i^gtumed by the sheriff. Mary Oswin afterwards died, and administration de
iittonir J to see ^ * •' '
tiiattiie judgment honis noH of the effects of Joseph Howell, the original judgment creditor, was
I'tedT''^ '^'^^' granted to the wife of Barron, also one of the lessors of the plaintiff. The
defendants claimed as mortgagees, under a mortgage executed in 1823.
Evidence to prove that the judgment had been regularly docketed was gone
into. A clerk to the attorney for the mortgagees proved a search at the
judgment office for judgment against Sir G. Turner, and he produced a list
of different entries, from which it appeared, that from 1811 to 1822 various
proceedings had been docketed against him ; but the only entry at the suit
of Howell was as follows : *< 1818, Michaelmas, Covenant, — at the suit of
Joseph Howell, 420." HowelCs attorney proved, that the judgment had not
been docketed by him previously to the latter end of 1828, when the papers
were removed out of his hands. The attorney into whose hands they were
put proved, that he completed the judgment in 1828, when the roll was
carried in by him. On this evidence it was objected, that there was no
proper docket of the judgment ; and Braithwaite v. Watts (a) was relied on.
The learned judge refused to nonsuit, but reserved the point ; and a verdict
was found for the plaintiff. A rule was accordingly obtained for entering a
nonsuit.
Platl and Wighlman, showed cause. The docket-book shows that the
judgment was properly docketed.— [Paf/e«on, J.— No, it shows that the
issue only was docketed ; and it has been expressly held, that docketing the
issue is a distinct act from that of docketing the judgment.]— The entry is in
strict accordance with the practice, which is, to enter the number of the roll,
and docket the issue ; and afterwards, when judgment is signed, to enter
(a) 2 Cromp. & Jervis, 319.
EASTER TERM, 1836. 51
the amount of damages. This, then, constitutes a perfect docketing of the Kiuo\ nench.
judgment ; and is shown to have been done in the present instance. In ^^v^
Kamshottom v. Buckhurst {a\ it was held, that an examined copy of the ^^^
judgment roll containing the award of the elegit, and return of the inquisi- Barron
tion, was sufficient evidence of the title of the plaintiff. v.
I'uiirHAS.
Per Curiam^ — Docketing the judgment is something more than docketing
the issue. It is the duty of the plaintiff's attorney to see that this is done.
The judgment was not completed in the present case so as to take prece-
dence of the mortgage. The rule for a nonsuit must, therefore, be made
absolute.
Rule absolute,
(a) Bull. N. P. 104.
Slecg v. Phillips.
/tSSUMPSIT, on a joint and several promissory note for 200/., drawn by intuacuoo
the defendant and one Cri/>pe/t. Plea: that the note was given upon- twomakmofa
an illegal consideration. At the trial before Lord Denman, C. J., at the joint and wverei
sittings at Westminster, after Michaelmas Term, 1834, Crippen was called by the other maker of
the defendant as a witness, to show that the consideration of the note was the note cannot b«
' called as a witness
illegal, under 7 Geo. 2, c. 8, the note having been given to secure a sum of for the defendant,
money advanced to the defendant and Crippen^ for the purpose of paying comSderaU^^*
hsses on time bargains in stock. He proved that he had paid two several given for the note
sams of 50/. on account of the principal sum in the note, but admitted that ^j^on!* hu"
there was at that time 10/. due for interest. He was objected to, as being an interest in defeat-
interested witness, on the ground that he had a greater interest to procure |^uier renders
a verdict for the plaintif!* than for the defendant ; inasmuch as, in the for- *»^" incompetent.
mer case, he would be liable only for contribution to a small amount, whilst
in the latter he might be called u])on, in an action against himself, to pay
the whole amount remaining due on the note. Simmons v. Smith (b) was
referred to.
Lord Denman, C. J., after argument, decided that Crijypen was not a
competent witness, and rejected him. A verdict was found for the plaintiff.
A rule was obtained for a new trial, on the ground that the testimony of the
wimess was improperly excluded.
Sir F. Pollock and R. V, Richards^ showed cause against the rule. All
the cases show, that, in an action against one of two parties, where both are
joindy liable, the other is not a competent witness for his co- contractor.
This was clearly laid down in £can5 V. Yeatherd(c), which was a stronger
€i«e than the present ; for there the witness came apparently to charge him-
>elfi by showing that the goods, which were the subject of the action, had
^ furnished to himself and his partner the defendant ; but he was
^ to discharge the demand by showing that they had been paid for, by
remitting a debt due from the vendor to the firm. Simmons v. Smith is
(6) Hyta & Moody, 29, and 1 SUrk. Evid. 107. (c) 2 Bing. 133.
J,2
52
TERM REPORTS ik the KING'S BENCH.
King'sBeneh.
Sleco
V,
Phillips.
the last of the cases on this subject, and goes further than any of the rest,
for it decides, that no release will, under such circumstances, render a man
a competent witness. But in Hall v. Cecil {a) the ground of objection to
the witness's competency is most plainly expressed ; namely, that though
it is ultimately against his interest to render himself liable to contribution to
his partner, he has a stronger and more immediate interest to defeat the
action, or lessen the damages. — [^Patleson. J. — The difference between the
cases cited and the present appears to me to be this, that in all the others
the evidence merely went in abatement of the existing action. Here the
witness is called to prove not merely that there was a joint contract, but
that the contract is of an illegal nature, and can never be the subject of an
action.] — If it be clear that he cannot, on account of a partial interest operat-
ing at the moment, be admissible as a witness, it is still more clear, that his
interest renders him incompetent when he comes aflfecting to make himself a
party to a joint contract, but, in reality, to get rid of the contract altogether.
Erle^ in support of the rule. The plaintiff ought to show, that on this
trial, the witness had an interest to get a verdict for the defendant, for other-
wise he is a competent witness. What is the liability which a joint maker
of a promissory note comes to establish, on proving that he himself is so?
Does he not fix upon himself an ultimate responsibility ? — [^Patteson, J. — He
does not ; if, at the same time, he vitiates the note itself, by showing it to be
illegal and void.] — [^ColeridgCt J. — The argument you are now employing
was used in Hall v. Cecil, but the Court thought, that the witness's interest
in another respect, namely, as to costs, was more to be considered.]-^But in
Knight V. Hugltes (L) it was held, by Lord Tenterden, that a co-obligor, suing
for contribution, had no right to demand contribution as to costs. If the
witness had established the plaintiff's right to sue him as a joint contractor,
he would have incurred a liability greater than any advantage he could gain,
or any liability he could get rid of by getting a verdict for the defendant.
He came to speak against his own interest^ and was, consequently, a compe-
tent witness.
Lord Denman, C. J. — It appeared to me at tlie trial, that the cases which
have been decided in the Common Pleas called upon me to reject the testi-
mony of the witness. It does not appear now to be denied that the witness
had an interest in defeating the action. It does not appear that he would
be liable directly to contribute any thing on a verdict gfven for the defend-
ant. It is true that he comes to prove the giving of the note, but he also
comes to prove it a nullity. The argument for the defendant, in favour of
the witness's admissibility, is, that he would ultimately be benefited in a
verdict passing for the plaintiff for the whole amount ; because, as he was
liable upon the whole, the verdict against the defendant would be a dis-
charge of him from half of his share, and he would be only liable to pay to
the defendant a moiety ; the amount of the verdict against the defendant
being so much to his credit. It appears to me that it does not lie in the
defendant's mouth to use such an argument, because his very defence is,
that the note was a nullity ; and the witness called to prove that defence
(a) 6 BiDg. 181.
{b) 3 Carr.& Payne, 467 ) and Moo. & Mai. 247.
EASTER TERM, 1836.
53
Slego
v.
PUXLLIPS.
might make use of it, in another proceeding, to save himself from all King^s Benelu
liability on the note.
LiTTLEDALE, J. — I also think, that the witness in this case was not com-
petent, on the ground of interest. If he could prove that the note was ille-
gal, and that the defendant was not liable, he saved himself from all liabih'ty
to contribution. On another ground, also, I think him incompetent. He
came to prove the illegality of the note. In this respect he and the defendant
had a common interest. In this instance he was the witness. If the action
had been brought against him, the defendant would have been called as his
witness to prove the illegality of the note. By those means these two people
would get rid of their liability altogether.
Patteson, J. — I think the testimony of this witness was rightly rejected.
The plea which the witness was called to prove states the illegality of the
consideration for the note ; and the witness is not called, as in the other
cases, to prove the joint liability, but to show that the note is altogether bad.
It is quite clear, that if the plaintiff recovered against the defendant in tin's
action, the defendant, being a co-maker of the note with the witness, might
sue the witness for contribution. I grant if the witness had already paid all
that the present defendant could recover against him by way of contribution,
be would have ceased to be interested, but he has not paid all ; he would, in
an action for contribution, be liable for what remained of his share, and for
the amount of interest due. It is said that he has an interest the other way,
for that if the plaintifi does not recover in this action, he may sue the witness
as a eo-defendant. This, however, is but a contingent interest — while
these parties are directly interested in defeating actions against each other.
I will not, however, put it on that ground. Although this judgment could
not be directly available in an action against the witness, one cannot help
teeing, that there is a common interest in these two parties to assist each
other. In Hall v. Cecil the Court thought, that one of two joint contractors
had a direct interest to defeat the action and lessen the damages, and there-
fore rejected him. Here the witness has a direct interest in the subject-
matter of the suit, so that the object of the action may not be accomplished.
CoLERiDOE, J. — The facts here do not bear out the arguments of Mr.
Erie. The doctrine, that the co-contributor has an interest to support, rather
than defeat an action like the present, is certainly novel. I do not think it
sound. True, he appears to come to fix the liability on himself; but also,
as in this case, with a direct interest to defeat the right of action itself. The
interest which he has on the other side is uncertain, because it depends on
the chance, whether an action might or not be brought against him by the
defendant for contribution. By stating that the instrument on which the
action is brought is itself illegal, he in effect gets rid even of that uncer-
tain liability ; for he shows, that in respect of that instrument no action
could be maintained against him by his co-contributor.
Rule discharged.
54 TERM REPORTS in the KING'S BENCH.
King's Bench.
Scott and others, Executors, v. B riant.
In «ction8 by exe- ^CIRE FACIAS by the plaintiffs, as executors, to revive a judgment
are named Tn the obtained by the testator. Profert was made of the probate. Piea : that
will may join, ^^ plaintiffs were not executors; and issue joined on that point. All the
of^ihem have plaintiffs were appointed executors by the will, but probate had been granted
proved; and it jq Scott alonc, leave beins reserved to the others to come in and prove.
makes no dif- . . .
ference that issue Verdict for the plaintiffs on the opinion of the learned judge. A rule was
is raised on a plea jjQwever obtained to arrest the judgment, or for a nonsuit, or new trial.
unfues
tutor.
R, V, Richards showed cause. — In actions by executors, all who are named
in the will must join, though some only may have proved ; Brookes v,
Stroud {a\ Walters v-. Pfeil{b), If some are not joined, the defendant may
plead in abatement (c). This course was pursued in the present instance,
and is perfectly regular.
Manself in support of the rule.
Lord Denman, C. J. — The verdict was perfectly right. In Comi/ns' Dig,
tit. Pleader (2 D 1), it is expressly laid down, that in an action by executors
all must join, though some do not prove the will, but refuse before the ordi-
nary. That is the general rule, and the question is not at all altered, because
in this instance an issue has been taken upon the fact of the plaintiffs being
executors. The question raised is, whether they are so ; and undoubtedly
they are.
LiTTLEDALE, J. — By the act of granting probate, all who are named a»
executors in the will have been acknowledged to be such by the proper
tribunal. The question raised on this issue is, whether tliose persons are
executors. I cannot doubt that they are. In Bro. Abr, Executors, pi. 27,
it is said, *< Debt by one executor. The defendant says that there is another
executor alive, whereupon he prays judgment of the writ. The plaintiff says,
that he is discharged from the administration, and never administered.
Nevertheless the writ was quashed, because he can administer when he
pleases."
Patteson, J. and Coleridge, J. concurred.
Rule discharged.
(a) 1 Salk. 3. (6) Mood. & Malk. 362. (c) 1 Wms. SaaDd.391, i.
Duke de Cadaval v. Collins.
A party know- j^SSUMPSIT, for money had and received. Plea : general issue. Trial
iTnoi^rlfn ^^^^^ ^^^ Dcnman, C. J. at the London sittings after last term. The
unfounded rl»im.
The party arrested, in order to obtain his discharge, paid a part of the amount^ and entered into an agree-
ment to put in bail for the remainder :~ffftf, that he might recover back the amount paid, in an action of
•$mtmfrit for monry had and received.
EASTER TERM, 1836. 55
action was brought to recover back 500/. paid to the defendant by the plain- King's Bench,
tiff, to obtain his release from an arrest on a totally unfounded claim. The v^^/^^
defendant bad acted as the agent for the Portuguese government of Z)o« Dukedc
Miguel^ and in that character had pecuniary claims upon that government. In ,;.
1833 he became embarrassed, and took the beneBt of the Insolvent Debtors' Collins.
Act. In 1834, the plaintiff, who had been a member of the government of
Dcm Miguely came to England, and the defendant claimed from him per-
sonally the amount of what he conceived to be due to him from the govern-
ment. In July, 1834, the defendant made an affidavit of debt for 16,200/.
against the plaintiff, and having issued a writ of capias^ procured a warrant
on it, and placed it in the hands of a sheriff's ofHcer. The plaintiff was
arrested^ and thereupon entered into a negotiation with the defendant ; and
on the 6th August, 1834, the following memorandum was drawn up and
signed by the plaintiff and the defendant : — ** We the undersigned agree to
the following conditions: first, his excellency the Duke de Cadaval pays 500/.
in lawful money of Great Britain to Thomas Collins, as a payment in part of
the writ issued in London for 16,200/., and the remainder, his excellency to
give bail immediately, to run the usual course of an action in the Court of
Kings Bench; both of us to abide the result; the said 500/. to be paid at
nine o'clock to-morrow morning, for which Mr. Lake, the consul, is re-
sponsible." In accordance with this memorandum the plaintiff was set at
liberty, and on the following day a more formal agreement was drawn up,
and the receipt by Collins of 500/. acknowledged. The present action was
brought to recover back that sum of 500/. It was objected at the trial, on
the authoriry of Marriott v. Hampton (a), and Linden v. Hooper (b), that
money paid under legal process could not be recovered back by the party
paying it in this form of action. His lordship, however, reserving that
point, left the case to the jury to say whether the proceedings were colour-
able, or whether they were bond fide, and with a belief that the plaintiff owed
money to the defendant ; and directed them, if they thought the proceedings
colourable, to find for the plaintiff. The jury found a verdict for the plain-
tiff for 500/. A rule for a nonsuit was obtained.
The Attorney 'General, Kelly, and Alexander, were to have shown cause,
but were stopped by the Court.
Plait and Butt in support of the rule. — This money was paid by the plain-
tiff to the defendant after process had been issued, and under an agreement
made with a full knowledge of all the facts of the case ; and therefore it can-
not be recovered back in this form of action; Marriott v. Hampton {a) •
The same thing was held in Knibhsv. HaU(c)aLnd Brown v. M*K\nally (d). —
[Coleridge, J. — In both those cases the payment was voluntary. — Patteson, J.
—In a later case, Falham v. Donm (e), Lord Kenyan appears to qualify what
he had before said in Knihbs v. HalL He seems to say, that a voluntary
payment of an illegal demand to redeem the person or the goods, may be the
wbject of an action for money had and received.] —The case of Snowdon v.
(a) 7 Tcnn Rep. 2C9. (d) 1 Esp. 279.
{b) Cowper, 214. {e) 6 Ksp.26.
(f ) 1 ¥sp. 84.
66 TERM REPORTS in the KINGS BENCH.
KingUBsndi. Davis (a), in which it was held, that money paid under comptdsion may be
^-^/^^ recovered, is distinguishable, because there the money was paid in fear of an
Cad^va^l ^^^^^^ which the party was not authorized to make at all. In Hamlet v,
V, Richardson (6), where a payment was made in consequence of a writ having
Collins. heen issued against the plaintiff, it was held, that the money could not be
recovered back, as there was no fraud on the part of the defendant. This is
not the proper form of action. If any could be maintained, it would be an
action for a malicious arrest.
Lord Denhan, C. J. — I was desirous that this case should be considered,
in consequence of Marriott v. Hampton, The general principle stated in the
margin is, that " where money has been paid by the plaintiff to the defend-
ant under the compulsion of legal process, which is afterwards discovered
not to have been due, the plaintiff cannot recover it back in an action for
money had and received.'* Upon looking at the case, however, it appears
that the marginal note is not warranted. The case merely decides, that
where money had been paid by the plaintiff to the defendant, after trial and
recovery, which is afterwards discovered not to have been due, the plain-
tiff cannot recover it back in an action for money had and received.
Lord Kenyon puts this as the ground of decision : *' If this action could be
maintained, I know not what cause of action could ever be at rest. Af\er a
recovery by process of law, there must be an end of litigation, otherwise
there would be no security for any person." Grose, J. says, " It would
tend to encourage the greatest negligence, if we were to open a door to
parties to try their causes again, because they were not properly prepared
the first time with their evidence." That case, therefore, did not arise on a
question of extortion under colour of legal process ; but merely determined,
that if a cause has been once regularly decided, it ought not to be disturbed.
Another reason, which made me desirous that the question should be con-
sidered, was the inconvenience of two actions for the same grievance being
open to the plaintiff. This money might also have been recovered as damages
in an action for a malicious arrest. Now even there is no bar to such an
action being brought. I therefore felt this inconvenience ; but I do not see
how that circumstance can defeat the right of the plaintiff to maintain the
present action.
LiTTLEDALE, J. — The casc of Marriott v. Hampton is perfectly distin-
guishable from the present, and furnishes no authority for our saying, that in
this instance an action for money had and received cannot be maintained. I
agree that there is a difficulty, on the ground that an action for a malicious
arrest will also lie. I do not, however, think that circumstance sufRcicnt to
prevent the plaintiff from recovering in this action. It by no means follows,
that because the plaintiff can recover in another form of action, that he can-
not recover in this.
Patteson, J. — I think the verdict is perfectly right. I put my judgment,
however, entirely upon the special circumstances of the case ; because I
agree, as a general proposition, that if a party pays money under compulsion
(a) 1 Taunt. 359. (ft) 9 Bing. 644.
EASTER TERM, 1836. • 67
of law, he cannot recover it back again. I even go the length of saying, that King*i Bench.
if a party, thinking that a debt is due to him from another, arrests that other, ^^^^
and receives the money which in truth is not due to him, that cannot be Cadaval
recovered back again. But then every case must be taken to be bond fide. o.
Here it is quite clear, both on the facts and on the finding of the jury, that Collins.
there was no banajidei on the part of the defendant. If so, the process was
used colourably for the purpose of obtaining the money ; and it would be a
great scandal to our law, if the defendant could be allowed to succeed in
retaining it.
CoLS&iDOB, J. — I am of the same opinion. It is not necessary, in order
to support this action, that any of the previous decisions should be disturbed.
The general principle is sufficiently clear ; but there is no case which has
determined, that he who having no demand, fraudulently and colourably uses
legal process to force a payment of his claim, shall not be liable in an action
for the recovery of that money back again. In Selwifu^s Nisi Prim (a) it is
said, that ** If an undue advantage be taken of a person's situation, and
money be obtained from him by compulsion, such money may be recovered
in an action for money had and received ;" and, in support of that propo-
iition, Astlejf v. Reynold (b) is cited.
Rule discharged.
(a) Page 86. (fc) 2 Stra. 915.
Morris v. Dixon.
/ASSUMPSIT, for money lent. Pleas: mm assumpsit, and the Statute of An »cknowiedg-
Limitations. At the trial before Vaughan, J. at the Chester Summer « i acknowledge '
Assizes 1834, the only evidence given to take the case out of the statute was to owe to Mr.
the following memorandum. It was dated the 30th June, 1832, and signed sumofs6/.,
by the defendant, but was without any stamp. It was in the following ^^^^^ V?*^** ^
terms : — " I acknowledge to owe to Mr. James Morris the sum of S6L, which soon wmycu^
I agree to pay to him as soon as my circumstances will permit me to do so.'* *^erniU me VTao
It was objected that this memorandum should have been stamped as an so," was held to
agreement; but the learned judge, thinking that it did not require any ^.|dtJ!U*wW»ut
stamp, admitted it in evidence, and a verdict was found for the plaintiff, with '"7 stamp, to take
leave to move to enter a nonsuit. A rule having been accordingly obtained, statute of limit*-
Uous.
Cottingkam and Cowling showed cause. — I'his document is nothing more
than a mere acknowledgment within the 9 Geo, 4, c. 14, s. 8, and is exempt
from stamp duty. That is clearly the case as regards the first part of the
document. If that had stood alone, the case would have been within the
decisions upon I O U promises. The subsequent portion of the document
can make no difference, for it is not material, and contains nothing more
than what the law would imply. Mullett v. Huchison (a), and Langdon v.
W'dton (b\ are authorities to show that a document of this description does
not require any stamp to make it admissible as evidence of an acknowledg-
(a) 7 BarD.& Cress. 639. (/>) 7 Barn. & Cress. 640.
58 TERM REPORTS in the KING'S BENCH.
King*8 Bench, raent. It cannot be an agreement, because there is a want of mutuality ;
"^^'^^ Lees V. Whitcomb (a).
Morris
r. ,
Dixon. /. Jervis, in support of the rule, cited fyUUamaon v. Bennett (b).
Lord Denman, C. J. — When this rule was granted, I thought there was
no other evidence in the cause of money having been lent by the plaintiff to
the defendant. If that had been so, this document, which on the face of it
purports to be an agreement, would have been the only evidence of any
debt ; and being an agreement, would have required a stamp. That, how-
ever, turns out not to be the case. There was other evidence of the original
debt, and this document was merely used to take the case out of the Statute
of Limitations. Being, therefore, a writing of that description, it is within
the exemption in the statute, and requires no stamp.
LiTTLEDALE, J. — The Statute must apply to something. I do not see to
what description of documents it could apply, if it does not apply to this.
Patteson, J. — I thought at first that there was nothing to show that this
instrument did not require a stamp ; but on consideration, I think now that
it is an acknowledgment within the meaning of the statute, and, as such,
exempt from stamp duty.
Coleridge, J, — I think that whatever a party uses for the purpose of
taking a case out of the operation of the Statute of Limitations, is within the
exemption of the statute 9 Geo, 4. If there had been no other evidence of
the debt, I should have thought that the instrument was made for the
purpose of proving the debt, and not of taking the case out of the operation
of the Statute of Limitations.
Rule discharged.
(a) 6 Bing. 34. (6) 2 Camp. 416.
Alcock and others v. Taylor.
1. The s & 4 /MSSUMPSITy for demurrage. Plea : nan assumpsit. At the trial before
WW. 4, c. 52, Lord DenmaHy C. J. at the last assizes for Northumberland^ the defend-
that previously 'to ant set up as a defence, that the plaintiffs had not procured the documents
"tUT'^cr^ required by 3 & 4 Will. 4, c. 52, s. 108(a). The learned judge thought
coastwise, a
written notice of (a) By which it is enacted, " that no arrival of such ship with goods so brought, as
the ship's arrival, goods shall be laden on board any ship in any the case may be, nor until proper documents
signed by the port or place in the united kingdom or in shall have been granted, as thereinafter di-
master, shall be Man, to be carried coastwise, or having been rected, for the lading or for the unlading of
given to the col- brought coastwise, shall be unladen in any such goods : and such goods shall not be
lector or con- ^^^^ ^ ^^ place from any ship, until due laden or unladen except at such times and
troller of customs, ,. *. • •* • « ^ "s "^ . in i i ■ • * « » i
by the master notice m writing, signed by the master, shall places, and in such manner, and by such
owner wharf-' ^^^^ \^!Qii given to we collector or controller persons, and under the care of such officers as
iuger,'or agent of ^J the master, owner, wharfinger, or agent of is and are thereinafter directed : and all goods
the ship, and tliat such ship, of the intention to lade goods on laden to be so carried, or brought to be so
ceruin documents tx>ard the same to be so cairied, or of the unladen contrary thereto, shall be forfeited/"
should be ob-
tained. In an action of luxMjn/xiV for drmurras;p,'-//«/^, tlut non-compliuncc by the pUintidf with the
above provisions, could not he given in evidence under the grncritl issue.
2. A statutory objection of this desiriptiou should be sptcially pleaded.
EASTER TERM, 1836. 59
tbat such a defence could not be gone into under a plea of the general issue. King's Bench.
but he reserved the point, and a verdict was found for the plaintiffs. v^.^^
Alcocx
Alexander now moved to enter a nonsuit. Taylor.
Lord Denman, C. J. — The statutory objection was not specially pleaded.
It could not be made available under the general issue ; the rule must there-
fore be refused.
LiTTLEDALE, J., Patteson, J., and Coleridge, J. concurred.
Rule refused.
Atkins and another v. Owen.
/ASSUMPSIT, for money had and received. Plea : general issue. At A person to whov
the trial before LiUledale. J. at the Sprini; Assizes for Devonshire in »''»"7*»*«>-
\ ^ r o trusted wroug-
1836, it appeared that the plaintiffs were the trustees under the marriage fuiiy, paid it into
settlement of one Studdy; and that Studdy and his wife were lodging at the own^"nr»nd
house of the defendant. Studdy was entitled to receive some rents of pro- received credit for
perty to which he was entitled in Newfoundland; and such rents were neveTdre^speci-
usually remitted to his asent Vallauce, in bills payable to the order of fic»*'y «?<>« ^^
' 4^ w frmmAit nf rtiA Kill
Studdy, Studdy having borrowed 1 50/. from the plaintiffs, directed Vallance ad action for
by letter to pay them that sum out of his Newfoundland rents. Vallance "°"*y •?■** *****
received was
having received two bills on account of the rents, the one for 100/. and the brought by the
other for 47/. 16«., accordingly sent them to the plaintiffs. The bill for 100/. V!^"^^^^ ''*"
o*' ' , before it became
was handed over to Mrs. Studdy ^ in order to get her husband's indorsement due -.^Ht/d, that
to it. Mrs. Studdy employed the defendant to procure this to be done. It J,i^ie *"**
was done 5 and he then claimed to retain the bill on account of a debt
alleged to be due to himself from Studdy, The defendant paid the bill
into his bankers on his own account, and received credit for the amount.
He drew on his account generally, but he never drew specifically upon the
credit of the bill. It became due after the action was commenced, and was
paid in due course. The learned judge, thinking that under these circum-
stances an action for money had and received was not maintainable, nonsuited
the plaintiffs, with liberty to move to enter a verdict.
Crarwder now moved accordingly. — No doubt trover would have been the
more proper form of action ; but that is no reason why the plaintiffs may not
waive the tort, and sue in assumpsit. It is not essential that money should
pass between the parties in order to maintain this form of action ; Reed v.
James (a). The bill was turned into money by being placed to the credit of
the defendant. In insurance transactions, if a broker debit an underwriter
io account with the amount of a loss, he is liable to his principal for money
bad and received, though no money may have actually ever come to his
bands; Wilkinson v,Clay(b)f Andrew v. Robinson (c). That is on the
(0) 1 SUrk. 132. (6) 6 Taunt. 110. (r; 3 Camp. 199.
60
TERM REPORTS IN the KING'S BENCrf.
Atkins
V
Owen*
King't Bench, ground of the estoppel by reason of the account. — [^Pattesoiif J. — In the case
of an insurance broker, he in the regular course of his business admits the
receipt of money ; it is no defence in an action against him by his principal,
for him to say that no money ever actually came to his hands. If he were
to fail, there could be no recovery against the underwriters. The cases
cited are therefore distinguishable from this on that ground. Here, if the
bankers had failed, still there might be a recovery from the defendant. The
cases cited go upon this principle, that it did not lie in the mouth of the
defendant to say that no money had ever come to his hands.] — So here that
principle is applicable ; the bill was wrongfully converted by the defendant,
and his having credit for it given to him by his bankers, he either had, or
might have had the proceeds in his hands, and cannot now say that he had
not.
Lord Denman, C. J. — The conduct of this defendant has been such, that
if possible we would make him liable in this action. It is, however, quite
clear to me that this form of action is not maintainable. We must view the
case as if the bill were not yet due ; and in that case, if not paid, the de-
fendant might be called upon to pay the amount twice over.
LiTTLEDALE, J. concurrcd.
Patteson, J. — This is in substance a loan by the bankers to the defend-
ant on the credit of the bill. In the meantime the amount cannot be money
had and received to the use of the plaintiffs, whilst it is a question whether
the bill will be ultimately paid.
Coleridge, J. concurred.
Rule refused.
1. A replevin
clerk is bound to
make reasouable
■ud cautious in-
quiry into the ap-
pirent responsibi-
lity of persons wlio,
being unknown
to him, tender
tJiemselves to him
as replevin
sureties.
2. It is not suf-
ficient to take the
statements of the
parties them-
selves : the re-
plevin clerk must
inquire from
other persons.
S. SmOh, that
he is not bound
to travel out of his
brought to him.
Jeffery V. Bastard, Esq.
/^ASE, against the sheriff o{ Devonshire, for taking insufBcient pledges to a
replevin bond. Plea : that before the taking by the defendant of those
persons as sureties, the defendant instituted, and made a due and proper and
reasonable inquiry into the circumstances, estate, substance, and condition of
each of them, with a view, and in order to ascertain whether each of them
was a good, able, and sufficient and responsible surety ; and that upon such
inquiry, and at the time of their becoming sureties, each of them appeared to
the defendant to be, and ostensibly was a good, able, sufficient, and respon-
sible surety. Replication, and issue on the facts of the plea. At the trial
before LittUdale, J. at the last Assizes for Devonshire, the plaintiff gave evi-
dence to show that both the sureties were in notoriously bad circumstances.
For the defendant the replevin clerk was called. He proved that both the
sureties were brought to his office in Exeter, by a clerk of the attorney for
the plaintiff in replevin. One of them resided at Ottery St. Marjfs, which
own office for the purpose of making inquiries, but he may require vouchers to be
EASTER TERM, 1836. 61
if twelve milet from Exfter ; and the other at Rackheare^ which is nine miles King't Bench.
from Exeter, The replevin clerk was not at all acquainted with either of v^n/^
the sureties, hut knew the clerk who came with them. He made no in- JiPFiRv
qoiries from the clerk as to the means and situation in life of the parties ; Bastard.
but he minutely examined them, both together and separately, as to their
circumstances in life, and the nature and situation of their property. Tlie
replevin clerk also embodied their answers in an affidavit^ to which they
were sworn, previously to their being accepted. The statements made by
the sureties were sufficient. The learned judge lefl the question of proper
inquiry to the jury, stating it, however, as his opinion, that the inquiries
being made only of the parties themselves, were not sufficient ; and that as
the replevin clerk knew nothing of the parties themselves, he ought to have
required the evidence of other persons. The jury found a verdict for the
pbiintiffwith 160/. damages.
Crowder moved for a new trial, on the ground of misdirection. — Enough
was done by the replevin clerk. If he ascertained that the sureties were
apparently responsible, it was enough ; Hindle v. Blades {a), — [Lord Den-
moM, C. J. — In that case the replevin clerk was not bound to make particular
inquiries, because there was a pritnd facie case of respectability. Here the
replevin clerk did undertake to make inquiries, and the question is, whether
he made inquiries from the proper parties. — ColeridgCy J.— His duty is to
ascertain the apparent respectability of the sureties. How can that be said
to be properly performed by any examination of the parties themselves ?] —
It is submitted, that such an inquiry might be sufficient if bond fide. It must
be a question in every case for the jury, whether reasonable inquiry has
been made or not ; Scott v. Waithman {h) and Sutton v. Waite (c). In the
present instance, the jury could not exercise a just discrimination, in conse-
quence of the direction they received from the learned judge.
Lord Denman, C. J. — The question is, whether we are to set aside the
verdict in this case and grant a new trial. It is admitted that the sureties
were in point of fact not sufficient ; but the issue was raised upon the ques-
tion whether reasonable and proper inquiries had been made as to their cir-
cumstances. The question of the reasonableness of the inquiries is a matter
for the consideration of the jury. If my brother Littledale had said that it
was a question of law, and had taken the case out of the hands of the jury,
it is clear that there must have been a new trial. But it appears to me that
be did no such thing. All he meant to do was to make a general observa-
tion on the point. There was therefore no misdirection. It seems to me
that the circumstance of the parties living at a distance, would not dispense
with the obligation to make proper inquiry. Here the jury could not hesi-
tate to say that the inquiry made was utterly insufficient. I cannot help
thinking also, that the taking the affidavits in so irregular a manner, shows
that there was considerable doubt of the sufficiency on the mind of the
re|»levin clerk.
LiTTLSDALE, J. — What I said as to the duty of the replevin clerk in
(a) 5 Taunt 225. (6) 3 Surk. 168. (r) 8 Moore, 27.
62
TERM REPORTS in the KING'S BENCH.
King's Bench, making inquiries may have been expressed strongly, but I did not intend, by
any thing I said, to lay down any general rule of law. My expressions must
be taken as applicable to the present case, and to that alone.
Jeffert
V.
Bastard.
Patteson, J. — The rule is clear, that reasonable caution must be used in
making the necessary inquiries. If it could be said that the effect of our
decision would be to compel the replevin clerk to go about making inquiries,
I should hesitate before I concurred in it ; but I cannot see how that can be
so. If the replevin clerk knows the parties, he will act on his own know-
ledge. If he does not, he has a right to say, " Satisfy me that you are suffi-
cient, or I will not accept you." In this case nothing like an inquiry was
made from any person but the parties themselves : and that is, in my opinion,
not sufficient. It does not follow that the sheriff or the replevin clerk is
bound to travel out of his office, at his own expense, to make inquiries ; but
he may require the parties to place before him such vouchers as will be
satisfactory to his mind. If this had been done in the present instance, there
would have been a strong case to go to the jury of a reasonable inquiry
having been made.
CoLERiDOE, J. — We are all agreed as to what the rule is by which the
duty of the replevin clerk is regulated, where the parties who present them-
selves to him as sureties are unknown to him. He is to make reasonable
and cautious inquiry into their apparent responsibility. The question is,
whether he has done so in the present instance. I think, under the circum-
stances, that he has not.
Rule refused.
The Inns of CAm-
Mrjmre so far
voIunUury to-
cietiesy Umt this
Court possesses
no power to
compel them by
MMMdlMnM to ad-
mit an attorney to
be one of their
members*
The King v. The Principal and Ancients of the Society
of Barnard's Inn.
IN this case a rule had been obtained, calling on the principal and ancients
of Barnard^ s Inriy to show cause why they refused to admit Mr. Grcskam,
an attorney, to be a member of their body. The affidavits on which the-
rule was applied for stated, that Barnard's Inn was one of the Inns of Chan-
cery, originally instituted, subject to Gray's Inn, one of the Inns of Court, for
the purpose of providing in earlier times for the better studying of the law :
that it was the smallest and richest of the Inns of Chancery ; and that its
management and property were now engrossed by particular individuals :
that Barnard's Inn, belonging to Gray's Inn, was subject to the visitation of
the benchers of that learned Society. The Judges had been declared, by
two rules of the Privy Council, in 1574 and 1704, to have jurisdiction over
the Inns of Chancery, as well as over the Inns of Court. In Dugdales Ori-
gines JutUciales (a), under the head of " Orders necessary for the Govern-
ment of the Inns of Court, &c. 1574,*' was this entry .—"The reformation
and order for the Inns of Chancery is referred to the consideration of the
Benchers of the houses of Court, to which they are belonging;" and
(a) C. 70, p. 312.
EASTER TERM, 1836. 63
again (a), '*That the Inns of Chancery shall hold their government subordi- King*s Bench,
nate to the Benchers of every of the Inns of Court to which they belong, ^-^^v-*^'
and that the Benchers of every Inn of Court make laws for governing them." "^^^ ^*''°
The principal and ancients of Barnard's Inn had three times refused to admit 71,^ Principal
Mr. Greshamyhxxt without giving any reason for their refusal ; and the Benchers and Anciente of
o£ Gray's Inn^ after an examination of the case, had decided that they pos- J Rj,^^p'/i^x.
sessed no power of interference. The present application was, therefore,
made to the superintending jurisdiction of this Court. Mr. Gresham pro-
duced testimonials signed by one serjeant and nine barristers, two of whom
were King's Counsel, in support of his application to be admitted, and he
stated, that he believed he had no other remedy but by appeal to the high
jurisdiction of this Court.
Sir IVilliam Folleit showed cause against the rule. The only precedents
for this application are to be found in Rex v. The Benchers of Gray's Inn (6),
and Rex v. The Benchers of Lincoln's Inn (c) ; and both these are precedents
against this application. In both the Court held, that these were voluntary
societies, and that an application like the present could not be granted.
This Court has no authority to order the members of this Society to receive
the applicant as one of their members ; and if the old order, (now never
complied with,) that every attorney shall be a member of an Inn of Court,
or of an Inn of CAancery, is to give him the right now contended for, he
will have just as much right to apply against any other Inn as against this.
The property of these Inns consists chiefly of leases. Every person admitted
a member of them has some control over their property. By what right is
it pretended that this applicant may claim the exercise of the power of this
Court, to give him this control over the property of a Society which does
not desire to inrol him among its members ? By the rules of this Society a
man can only be admitted a member after being proposed and seconded for
election. The members have a right to make these rules. On what ground
is a person to be admitted a member without observance of them. — [Cole^
ndge, J. — Is there no power of control over the proceedings of these
bodies ?] — None. The Benchers of the Inns of Court have never exercised
any. In Kex ▼. AHen{d) this Court declared, that the Benchers of the
Inner Temple do not appear to have any compulsory power over Clifford's
Iw^ and discharged a rule similar to the present, which had been obtained
against the principal of that Inn. — [Coleridge^ i , — In Mr. Amos' s edition of
Forteseve it appears, that in Fortescue's time the Inns of Chancery were the
resort of the young men of the profession.] — [^Littiedale^ J. — The order of
1704 declares, that all attorneys and clerks of the Court shall be members of
the Inns of Court, if those Honorable Societies will admit them, which shows
a discretionary power in the Inns of Court, but there does not appear any
inch discretion in the Inns of Chancery,'] — But since those rules were made
the practice of attorneys has been regulated by statutes, which have there-
fore effected a virtual abrogation of all those rules. The clerical profession
presents an analogy to this case. The bishops have declared, that no man
shall be inducted who has not taken a degree at the University, Can any
(a) C. 72, p. 322. (c) 4 Barn. & Cress. 855.
(6) Doogl. 353. Id) 5 Barn, k Adol. 984.
64 TERM REPORTS in the KING'S BENCH.
King*$ Bench, man apply to this Court for a mandamus to any of the colleges to admit him
s^^'^i' There is no inchoate right in any man to compel an admission of himself to
The Kino jje a member of this Society ; and consequently there can be no authority for
The Principal ^^^^ Court to interfere for such a purpose,
aod ADcieDts of
BABifAED'slNN. ^^^^^ *"^ Kennedy, in support of the rule. There is a strong prtmd
facie.caae in favour of this application. — \_Coleridge, J. — You must make out
that this applicant has an inchoate right to what he asks, so as to call for the
interference of the Court to secure him the full enjoyment of it.] — There
exists some doubt as to the origin of these minor societies. Fortescue
says (a), '* The method of the study of the law I will describe. In these
Inns of Chancery the students are young men who study the judicial writings
and the principles of the law, and afterwards they are admitted to the Inns
of Court." Then Blackstone says (6), " In this judicial university, (for such
it is insisted to have been by Fortescue and Sir Edward Coke,) there are two
sorts of collegiate houses, one called Inns of Chancery, in which the younger
students of the law were usually placed." Now, thi^ university was regu-
lated by orders of the Privy Council, which shows that it was a public body.
Yet the answer to the present application is, that these are voluntary So-
cieties, which are bound by no rules, and subject to no jurisdiction. In order
to come to that conclusion it must be held, that the orders of the Privy
Council, and the interference of the Lord Chancellor as a visitor, were illegal
acts. The Court will not make any presumption of that kind ; but, where
the public authorities have passed orders for the regulation of these bodies,
will treat them as subject to the jurisdiction of this Court.
Lord Denman, C. J. — I do not see that there is any authority giving us
the power of interfering, in this manner, with the members of these So-
cieties. '
LiTTLEDALE, J. — The rulcs formerly made are inconsistent with the
modern practice, and are never observed now, nor the non-observance of
them punished.
Cur. adv. vuU,
Lord Denhan, C. J., subsequently said, we think that nothing, either on
the affidavits, or that we have heard in the argument, shows that we have
any authority to interfere in the manner now prayed, for the purpose of
compelling this Society to receive Mr. Gresham as a member. The rule
roust, therefore, be discharged.
Rule discharged.
(a) C. 49. (6) 1 BL Com. 25.
Anonymous.
If tiie Court, on "IN this case a writ of error had been brought, and errors duly assigned by
the reporTof its the plaintiff in error. There had been a joinder in error, but the joinder
officers, pro-
Douuces, for the hrst time, » proceeding to be IrreguUr, the party committing the irrogularitjr must paj the
costs occasioned bj it*
EASTER TERM. 1836. 66
■ error had not been signed by counsel. For this supposed defect judgment King's Be»ieh,
bad been signed by the plaintifTin error. A rule had been obtained to set "^^^^^^
aside this judgment, on the ground of irregularity ; and it was stated, that,
oa af^ication at the offices, all the officers agreed that the joinder in error
did not require counsel's signature. The question was, who should pay the
costs occasioned by the irregularity ?
R, V. RichardSf for the defendant in error, contended, that this was
like any other irregular proceeding, the costs occasioned by which must be
paid by the party committiug it.
Arckbold, contrd^ insisted that till now it had always been at least doubt-
ful, whether a joinder in error did not require counsel's signature ; and that,
consequently, the plaintiff ought not to be made to pay costs in this instance.
The Court said, that there was nothing in this case to exempt the party
in irregularity from payment of costs.
Judgment set aside with costs.
Anonymous.
QTEER applied, that a person might be admitted an attorney as of the The rule which
present term. The person on whose behalf he applied had fully com- J^gJJ^*^ H
plied with every rule except one (a), and on that one the officer of the Court attorney, of hi»
nised a doubt. This rule related to the notice required to be given by him for^SsionT** '
of his intention to apply for admission. The notice was to be given " three ** ^^«* **»y»» "^
- * , .. .V. < T 1 • f . the least/' before
days at the least before the term. In the present mstance, the notice was the term, must be
given on the 12th for the 15th ApriL The officer of the Court thought, ^'^JJ^^l'^J^^
that three days at the least, meant three clear days. The words of the rule cieu- Jays,** and
do not leave the matter without doubt. The rule, therefore, must be con- ?* **T ""'^ '"
' ' be exclusive.
ttroed by reference to another rule relating to the computation of time (6),
by which it is declared, " that in all cases in which any particular number
of days, not expressed to be clear days, is prescribed by the rules or practice
of the Court, the same shall be reckoned exclusively of the first day, and
inclusively of the last.'*
Lord Denman, C. J. — Does not the expression " at the least '* supply
the omission of the word " clear ?" Under the special circumstances of this
case we will not exclude the applicant ; but, for the purpose of settling the
rale, we will speak to the other Judges on the point.
W. H. Watson applied on behalf of another person, under precisely the
ume circumstances.
Cur. adv, vulU
(a) Rtf . Gm. miavif Tena, 6 Will 4, s. 5, Term, &c." See 1 Har. & Woll. 639.
" And it IS furtbar ordered, that three days, at (6) Reg, Gen, Hilary Term, 2 Will, 4, s.
tbe least, before the commencement of the viii.
▼OL. II. F
66 TERM REPORTS in the KING'S BENCH.
Kitig*s Bench. 'Lord Demman, C. J., on a subsequent day (18th jipril) said, — We think
N^v-^ that both these persons may be admitted now, under the particular circum-
Akonymous, stances of the case ; but we have spoken to the other Judges on the subject
and we all agree that, upon the words of this rule^ all the days must be con-
sidered exclusive, in the same manner as if the rule had said three ** clear
days" notice.
Rule granted.
Ex parte Ridley.
Where a persop. wmm ff^ WATSON applied, that Mr. Ridley might be admitted as an
daring hb clerk* f^f^ , -i.VT r«i. nt% ■» • Ti m«n>*f i_j
ship, changed his attomey of this Court. The amdavit stated, that Mr. RMey bad
mu**iefor^ot to ^^^ articled to an attomey carrying on business at Newcastle^ and had
put both hu for- scrved four years in his office, and one year, with his consent, in the office of
M^ernhbnotice * couveyaucer at Newcastle. In the year 1835 he changed his name, in con-
the Court, on sequcucc of coming into the possession of some property. All the notices
it wL solely from ^^^ heexi given in his present name, and not in the name he bore during the
misuke that he period of his service. By the rule of Trinity Term, 31 Geo. 3, every person
do so, pennitted desiring to be admitted an attorney is required (a), among other things, to
him to give notice « cause his name and place of abode to be affixed on the outside of the
at the end of one t. r^' * n i i •<! % t /•!
term foradmission Court of King 8 Dench ; and to enter m a book, to be kept for that purpose
in the next. ^^ ^^^ q£ ^y^^ Judges Chambers of this Court, his name and place of abode,
and also the name and place of abode of the attorney to whom he shall have
been articled.** The rules of last Hilary Term require a similar notice (b),
— [Paiteson^ J. — Did he refer, in the notices, to his change of name?] — He
did not ; he did not think of it till it was too late. — [Patteson, J. — Did he
change his name while under articles ?] — He did, just about the time of his
quitting the conveyancer's office, and of the expiration of his articles. The
affidavit is very distinct, as to the omission to notice the change of name
having occurred solely from forgetfulness ; as to his not having omitted it
from any other cause whatever ; and as to the deponent's belief, that there
was no opposition intended to be made to his admission.
Lord Denman, C. J. — We will consider this case also, and mention it
when we decide the cases upon the notice.
Cur. adv. vult.
Lord Denman, C. J., on a subsequent day (18th April) said, — Under the
circumstances of this case, we think that the applicant should be permitted
to put up his notices (stating both his names) until the end of this term, for
admission in the next term. He may then be admitted on these fresh
notices.
Rule granted.
(a) Tidd's Practice, 8th edition, 69. (6) Ante, vol. i. 647, et seq.
EASTER TERM, 1836. 67
The King v. The Lords Commissioners of the Treasury. *"^^
jD ULE for a tnamdaunu to be issued to the Lords of the Treasury, requiring i. The Lords of
them to issue a Treasury minute, directing the Lords of the Admiralty to ^nndtrl o*0A,
pay to Robert Hand the arrears of a pension granted to him for services in «• its, a penioa
the Navy Pay Office. The applicant, besides having been a clerk in the ^^om office^^
Navy Pay Office, had been a sealer of writs in the Exchequer. An act been uboiuhed.
was passed in the year 1832, for removing the business of the Navy Pay thinking *Uiey bad
Office to the Admiralty. The consequence was, that many of the clerks were °° p®^*^ ^ p*°*
DO longer necessary, and Mr. Hand was amongst others declared by the yoked tbeir m-
Lords olf the Treasury to be entitled to a pension in respect of his abolished ""'• "^^ an>ouiit
» •' * . f, , oo<^« appeared in
office. The statute of S Geo. 4, c. 113, settled the grantmg of pensions the parliamentary
according to the length of service. The length of the applicant's service bad Sl^t^^^I^w ^
been i5 years* His pension was therefore granted according to the scale be withdrawn in
settled by the act. While he continued in the office he was also in the re- [^,i^J[U^. *^'
cdpt of the profits of the office of sealer of the writs. When the office in drawn, and no mo-
the Exchequer was abolished, the act directed that compensation should be ^ji^ed^m pu-iu-
given to the officers whose profits had thus been taken away. Under that m«Dcon account of
last act the compensation to the plaintiff was calculated at 449/. Payment sum wUdThad^
of the pension had since been refused, on the ground that his former office of been ©nee in the
,-.*-__ __ _^ , ,1. ti«« wf » estimates, havim
derk w the Navy Pay Office, havmg been abolished, Mr. Hand was re- been appUed to tiie
oeiving in respect of another office a larger sura than the amount of the pen- ^"J**"**™**"*:^
. m % m 1. J^««, that aiiuw-T
noD for the office which had been abolished. dmmmt conid not go
to the Lords of the
_„ _^ , Treasury to enforce
The AUomey-Genend and Wlghtman showed cause. — The pension was payment of the
granted in the first instance under mistake, and when this mistake was dis- ^!!*'2?' , . «
' ' 2. The Lords of
ooveied, the Lords of the Treasury rescinded the order for it. The applicant the Treasury had
held an office to which he was appointed during pleasure, and the Lords of J^cUa^Mnston."^*
tbe Treasury, in directing that he should receive a pension, thought that they
were but making him some fair compensation for tbe loss of his office.'
When, however, it was considered that he was holding another office ex-
ceeding in value the pension they had granted, they found they had exceeded
their authority ; and rescinded, as they had a right to do, their order. The
name of the applicant bad not recently been before parliament, so that there
vas no appropriation to him in the estimates. This distinguishes the case
from that of Rex v. The Lords of the Treasury^ determined in last Michalemas
Term (a). In that case the allowance had been voted by parliament, and
was admitted to be in the hands of the Lords of the Treasury. Besides, in
that case the attention of the Court was not called to a most important deci-
sioo in the Common Pleas ; Gidley v. Lord Palmerston (6), in which it was
held, that there is no remedy at law against a public officer by individuals for
money, which as a public officer he is authorized to pay them, although he
may have received the money applicable to that purpose.
Sir W. FoUctt and J, JerviSf in support of the rule. The crown might
grant a pension for life, and having granted it, the Lords of the Treasury had
DO right to take it away. The name of the applicant was in the esti-
nates submitted to the House of Commons ; and the sum of money placed
^'ost it having once been granted, it must be taken tliat parliament had
(•) 1 Har. & WoU. 533. (6) 3 Brod. & Bing. 275.
F 2
68 TERM REPORTS in the KING'S BENCH.
J(ing*s Bench, sanctioned the grant. If so, the Lords of the Treasury became mere
^"^"^^^ receivers of the money on his account ; and on the authority of He* v. Lards
\. "'^ ^ '^^ Treasury, the money must be treated as money bad and received by
TheLoRDsCoM- them to the use of the applicant, to whom payment of it might be enforced
^^^^^^ °^ ^^^^' ^^^^ '■"^^- '^^^ ^^® ®^ Gidley v. Lord Palmerston does not touch the
question at all, because that case turned entirely on the point whether there
could be any implied contract between a public officer and an individual, in
respect of matters arising out of a public transaction.
Lord Denhan, C. J. — This rule cannot be supported. We have been
referred in this case to the rule supposed to be laid down in a case decided by
us in last Michaelmas Term, the case of Rex v. Lords of the Treasury, on the
application of Mr. Carmkhael Smith. It is a mistake to suppose that that case
is an authority for the present application. The circumstances of the two
cases are very different. There the Lords of the Treasury had admitted from
time to time, that they had the money of the applicant in their hands ; and
they sought to impose on him a condition before paying it over. All that we
then decided, was, that the Lords of the Treasury should make a return to
the mandamus then applied for. In the case formerly before us we merely
decided that the Lords of the Treasury should explain how it was that they
considered themselves not bound to pay over to the applicant money of his,
which they admitted to have in their hands. The facts here are very
different. We are now called upon to inquire whether the Lords of the
Treasury had the power to make this grant. If they had that power, then
the question arises as to the effect of the proceedings which have since
occurred between them and Mr. Hand. It appears that that gentleman held
an office under the Navy Board. That office might in fact be held by him
for life ; but it was not necessarily by its nature an office of that sort. Then
« comes a question, as to his right to compensation on the abolition of that
office. After the act of abolition had taken place, the Lords of the Treasury,
wishing to put him in as good a situation as possible, stated, that they would
grant him a warrant for a pension. It seems to me, on the best consideration
I can give to the Act of Parliament, that they had not that power : that they
had not authority to grant life pensions by warrant in this manner. In
August, 1832, he was told, that he would receive a pension in lieu of the emo-
luments of his late office. If the Lords of the Treasury had the power to
grant such a pension, they would have included the amount of it in the esti-
mates laid before the House of Commons in the early part of the following
year. Before that time arrived, the warrant for the pension was revoked, the
appellant being thought to be fully provided for by his other situation. We
have not any right to inquire whether this was a good reason or not for re-
voking his pension. In fact he was told, that the warrant for it would be
withdrawn. There was afterwards a vote of the House of Commons for the
sum of 240/., on the estimate as for tlie reduction of the office. It is now sa-
tisfactorily explained, that that item was introduced by mistake, that that sum
was not entered in the accounts; and that in the year following that sum
was omitted from the amount of the money to be voted. After the period of
the first vote, all the unappropriated money had been disposed of by par-
liament as part of the ways and means. The first vote merely gave the
Crown the power of paying the money, but the Crown did not think fit to do
so. The question might have arisen whether that was from mistake or not,
The King
V,
theTasiBUBY.
EASTER TERM, 1836. 69
m the grant in the first instance been vah'd ; but it seems to me that the ap- Kiiig*s Beack.
plicant here never was entitled to the money, and consequently, that the
fbundatioD of his claim being withdrawn, he cannot support this rule for the
enforcement of it. The Lor dsCom-
MZ88IOKRRS of
LiTTLEDALE, J. — I think that the Lords of the Treasury had not the power
to make this grant. In the first place, they had no funds from which they
could pay this pension, in the character of Lords of the Treasury they had
ix> right, but merely to give a recommendation. They could not grant
the pension, for they had no authority to grant it ; and at all events they
could not grant a pension for life, but only for such time as parliament should
think proper to permit it to continue. As parliament voted this sum in the
estimates of the first year, there was this sum of money in the hands of the
Lords of the Treasury ; but they, finding that they had not authority to grant
the pension, returned the money for the use of parliament, and by parlia-
ment it has since been applied to otlier purposes. On the whole I think that
no case has been made out for our interference, and that this rule must
therefore be discharged.
Patteson, J. — I think that the rule for a mandamus in this case must be
discharged. This application is founded on the 3 Geo, 4, c. 113, from which
it appears that these pensions should be granted on the recommendation of
the Lords of the Treasury ; but there is nothing in the statute which takes
away from them the power to discontinue these pensions, if they so think fit.
The office held by this applicant was an office held at pleasure, though
perhaps it could scarcely be properly considered as an office at all. There
was no provision in the statute that the applicant should have a pension for
life, and therefore, the Lords of the Treasury had no power to grant one. It
appeared, however, that they did grant him a pension, but they revoked it
before be had ever received any money under their grant. Up to y^pril 1 833,
be received full pay in respect of his office, and consequently the pension could
not be granted till August^ 1 833. The parliament could not at that time vote his
pension ; his name would not at that time appear in the estimates, but it did
io the early part of the following year. In February of that year, the warrant,
which had been previously given, was revoked. If the Lords of the Treasury
had had the power to grant the pension, they could only grant it subject to be
revoked under circumstances. They had not however any power to grant it.
The circumstance of his name appearing in the estimates of the year following
the grant of the pension, and of the money being voted, was not a mistake, for
the officer was obliged to put in his name, on account of the warrant not having
been revoked at the time when the estimates were made out. The ap-
pearance of his name in the estimates of the following year was a mistake.
The whole sum mentioned in the estimates was voted, and that of course
included this sum of 240/. There ought to have been another item of the
derk, that the pension was discontinued, but that is not material. If he was
not entitled to it for the year, when it was regularly voted, d fortion he was
not entitled to it for the year when it was put by mistake into the estimates.
I think that he was not entitled to it in either of these years ; I am therefore
of opinion, that this rule must be discharged.
Coleridge, J concurred. Rule discharged.
70
TERM REPORTS in the KING'S BENCH.
Kwg*i Bench,
If the overseers
of the poor of one
parish occupy
premises in auo-
ther parish, they
are liable to be
rated iD the se.
cond parish for
such premises,
though thej are
occupied solely
for the beoe&L of
the poor.
The Governors of the Poor of Bristol v. Wait
and others.
TfXEPLEVIN. Avowry, first, that the taking was under the provisions of
the statute of 43 Eliz, for the relief of the poor. Second, an avowry
that the plaintiffs occupied premises in the parish of St. Philip and Jacob,
and that a poor-rate was made on the 3d March, 1831, in which the plain-
tiffs were assessed at S5l. This avowry stated the summons, warrant of
distress, and proceedings to enforce payment, and that the defendants were
overseers of the poor of the parish of St. Philip and Jacob, Third, fourth,
and fiflh, the like avowries for three other rates. Sixth, an avowry in a
similar form, stating the distress to have been for all the poor-rates.
Seventh, an avowry reciting, that by an act of parliament, 1 Will. 4, the
plaintiffs were empowered to buy pro})erty near the city of Bristol, for the
purposes of the poor, and that such property was to continue liable to rates ;
that the plaintiffs bought a building called the armoury, and appropriated it
to the use of the poor, and that the plaintiffs occupied the armoury and
were liable to be rated for it. It then stated the rates and proceedings as
before. Eighth : this avowry was nearly similar to the seventh. Pleas, to
the first six avowries, de injurid ; and to the seventh and eighth, there were
pleas admitting the act of parliament mentioned in those pleas, with de
injurid to the residue. The private act of parliament, 1 Will. 4, c. 4, which
empowered the plaintiffs to buy lands and buildings for the use of the poor,
recited, that in the parish of St. Philip and Jacob, a certain building called
the armoury, and certain messuages, buildings and lands thereto belonging,
and a certain close of ground adjoining thereto on the north and north-west
sides, might be purchased at a moderate expense, for purposes connected
with the management of the poor, and empowered the plaintiffs to buy those
premises ; and in s. 13 of that statute, after reciting that " when and so
soon as the said lands, buildings, yards, premises, hereditaments and pre-
mises shall have been purchased by the said governor, deputy governor,
assistants and guardians of the poor, and appropriated to the reception of
paupers belonging to the city and county of the city of Bristol, under the
provisions of this act, the same will not be subject and liable to such
rates, taxes, and levies to which the same are now subject and liable. And
whereas it is expedient that the same should be made subject and liable to
such rates, taxes, and levies," it was enacted, " that the same lands, build-
ings, messuages, yards^ hereditaments and premises then purchased and
appropriated as aforesaid, shall be subject and liable to all rates, taxes, and
levies to which the same are now subject and liable, but shall not be
assessed to every such rates, taxes, or levies, at a higher rate or value than
that at which the same lands, buildings, messuages, yards, hereditaments
and premises are at the time of such purchase, rated or assessed.*' The
poor of the parish of St. Philip and Jacob are managed under a local act of
parliament, 38 Geo. 3, c, 69, and by the 22d section of that act, the vicar,
churchwardens, and vestrymen of the parish of St. Philip and Jacob are to
elect and to return to the justices acting for the district, three proper persons
to serve the office of overseers of the poor, who are to be appointed ** for
the term of three years then next ensuing."
V.
Wait.
EASTER TERM, 1836. 71
The plaintiffii appeared to be rated for the armoury at 100/. a-year, and for King's BmcH.
a lace manufactory in Bread-street^ (which the plaintiffs also rented) at 28/. '^^v^^
a-year. The armoury had been a military dep6t in the hands of the crown, ^f^Jj^^p^R^JJf*
and, at the time when the plaintifis bought it, was not rated at all. The Bristol
paupers employed in the lace manufactory were paid for their work by the
plaintifis^ who sold the lace. At the trial of the cause before Alderson^ B.,
at Gloucester^ at the Summer Assizes for 1834, the learned Baron was of
opmion, that the plaintiffs were not beneficial occupiers ; and that as the
annoury was not rated at the time of the purchase, it did not become so on
passing into the hands of the plaintiffs. A verdict was therefore taken for
the plaintiffs, subject to a motion to enter a verdict for the defendants. A
rule having accordingly been obtained,
Meade and W. Alexander showed cause. — There was no beneficial occu-
pation here, so as to render the plaintiffs rateable. It is said, that if persons
havii^ the management of the poor of one parish, take premises out of the
limits of that parish, they are liable to be rated : for those premises might
be occupied by persons who would pay rates for them. The
argument might be applied to premises used for public purposes, yet
it 18 clear that buildings, such as St, Luke*s, occupied for a public charity,
or for a public purpose, as by a cavalry regiment, are not rateable ; Rex v.
St, Luke's (a). Lord Amherst v. Sommers (h). Upon the same principle the
Masters in Chancery have been held not rateable, as occupiers of their
respective apartments in Southampton-buildings ; Holford v. Copeland (c).
It is clear that the armoury here was not rateable ; it was at one time occu-
pied by a cavalry regiment stationed near the place ; and since it was
purchased by the plaintiffs, had been let to the corporation of Bristol for the
purpose of putting soldiers into it. It was not rateable before the private
act of parliament ; now that act distinctly says, that premises in their occu-
pation would not be subject to rates, &c., and then provides that such
premises shall be subject to ** all rates to which the same are now subject
and liable." These words do not make property rateable which was not
before rateable at common law, or under the statute of Eliz. In Rex v.
TerrcU (</), Lord EUenhorough said, ** the principle to be collected from all
the cases on the subject is, that if the party rated have the use of the
buildiDg, or other subject of the rate, as a mere servant of the crown, or of
any pablic body, or in any other respect for the mere exercise of public
doty therein, and have no beneficial occupation of, or emolument resulting
from it, in any personal or private respect, then he is not rateable." Mar-
dkdl V. Pitman (e) will possibly be cited, to show that this action is not
maintainable. The distinction between that case and the present is, that
there ^e magistrates had jurisdiction, because the rate was alleged to be
improperly made in point of form; but here, we say, that they had none, for
that it ought not to have been made at all. In Weaver v. Price (/), it was
Md, that trespass lies if the party distrained upon has no land in the parish
is which the distress is made. This action is therefore maintainable ; and
on the other point, it is clear that there was no beneficial occupation, since
(a) 2 Burr. 1053. {d) 3 East, 506.
(ft) 2 Term Rep. 3^2. (e) 9 IVinsr. 595.
(r) 3 Bos. & Ful. 129. (^) 3 Barn. & Adol. 409.
72 TERM REPORTS IN the KING*S BENCH.
King*i Benek. one of the sections of the act declares, that no settlement shall be. gained in
TheGovERNORs ^^^P^^ of the property which the plaintiffs were thus empowered to pur-
*>^*^ ^"» of chase. As the defendants would suffer from no liability on account of this
purchase, they are not entitled to any advantage on account of it.
Bristol
Wait.
Ludlom, Serjt., Sir ff^, FolletU Maclean, and Greaves, in support of the
rule. — The cases cited in favour of the plaintiffs do not apply. In Lord
Amherst v. Sommers, it was distinctly found that the plaintiflTdid not occupy.
That is the question here. Weaver v. Price is itself an authority to show
that if the party had had an interest in land in the parish where the distress
was made, it would be good. If the poor were placed in a mill, and worked
in grinding corn, and that mill was in a parish to which such poor did
not belong, it cannot be pretended that it would not be rateable. The
recital in the statute is not conclusive on this subject. Rex v. Sutton (a).
There is no other case in. which the question of a beneficial occupation has
been raised in trespass. The statute of Eliz. makes the party occupying
liable ; and it is clear that the plaintiffs were occupiers here, and were,
as such, liable to be rated. In all the cases where this question has been
raised, the fact of occupation by the party rated has been disproved, here
it cannot be denied. Such was the case even in Holford v. Copeland, but
there the case depended on a local statute, which expressly declared that
the rate should be imposed on the proprietor of the building. The parties
here have, at one time, made a profit of the armoury, and shall, therefore,
be liable to rates in respect of it; Rex v. Agar (6). There, the trustees of
a Methodist chapel were held rateable, though they expended all that they
received, for rent, and in repairing the chapel, &c., and obtained from it no
profit whatever. Overseers of the poor, occupying for the use of their own
parish, lands or premises within the limits of another, are therefore, like
any other private individuals. They are occupying premises from which, if
in other hands, the parish where such lands or premises lie would receive
a benefit.
Cur. adv. vuU,
Lord Denman, C. J., in this term, (9th May,) delivered judgment (c). —
This was an action of replevin tried before Mr. Baron Alderson, when a ver-
dict was given for the plaintiffs, but leave was reserved to the defendants
to move to set it aside, and enter the verdict for them. There were no
facts in dispute, and the case was brought before us with the view of raising
several important points of law for our consideration. The most material
of these is, whether the goods of the plaintiffs were improperly levied upon
as a distress for poor-rates ; that depended on the question whether the
plaintiffs were the occupiers of rateable property in the parish of St. PJUlip
and Jacob, in Gloucestershire. It appeared on the evidence, that the plain-
tiffs, the governors of the poor of the city of Bristol, had taken a certain
building in the parish of St, Philip and Jacob, of the poor of which the
defendants were directors, and that the plaintiffs had taken this building
and the property attached thereto, simply for the purpose of lodging or
employing the poor under their management, according to their discretion.
(a) 4 Maule & Selw. 543. (h) 14 East, 255.
(r) This case was argued in Hilary Terin, 1836.
EASTER TERM, 1836. 73
On tone part of the property the poor had been so employed ; the property King*s Bench.
itself would clearly have been rateable, unless the kind of occupation, which v^/^i/
existed in this particular case, exempted it from rateability. The question, TheGovERNORs
therefore, is, whether the governors of the poor, renting property which Bristol
would otherwise be rateable, are exempted from liability to rating, because ^*
such property is appUed solely to the purpose of dispensing relief to the
occnpiers' poor* In this case references were made to cases of property
held avowedly for public purposes ; such, for instance, as the stables hired
by the colonel of a cavalry regiment, and used solely for the purposes of
the regiment, or the governors of a public charity, or the steward of St.
Luke's^ in which the property would in the first case be occupied solely for
public purposes, and in the two last for charitable purposes, and would not
be rateable on that account. We accede fully to the doctrine laid down in
all that class of cases, but we observe that in all those cases it was admitted
that such property, if applied at all to private purposes, became forthwith
rateable ; and of that, the case of the barracks hired by the colonel of a
r^ment furnished an instance. Beneficial occupation was said to be the
true criterion of rateability. That is indeed a good criterion, and affords a
pqmlar and intelligible rule. If by beneficial occupation we were restricted
to a profitable occupation, we could not say here that there has been a pro-
fitable occupation : but a beneficial occupation is nothing like it, for all the
private occupiers of this property, though their occupation of it might have
been ever so unprofitable, would have been liable to be rated. Thus the
ooeupier of a coal mine has been held liable to rates, though the coal mine
produced bim no profit (a). Without, however, exactly presuming a liability
from the mere fact of occupation, we think that that establishes a primd
fiuie liability, which however may be explained away in each case. This
was the case in Rex v. Field, where the coachman, occupying stables, was
permitted to show that he occupied them only as the servant of his master,
on whom the rate ought to have been made. In this case it was said that
the plaintiffs ought not to be rated, because it would, in fact, be rating the
poor ; just as in the other cases it would have been in one instance the
rating of the charity children, and in another the lunatics. But there is
this difference between the cases, that it could not be said that the occupa-
tion was not a beneficial occupation, since the expense of the house or
lodging of the paupers must have been, by some means, supplied to them.
The occupation, therefore, is sufficiently beneficial to found the liability ;
Imt then it is said, that as this benefit was a benefit to the paupers, the rate
osght not to have been imposed in respect of such an occupation. The
Woefit, however, was a benefit for what might, in the parish which imposed
the rate, be called foreign paupers. How did it concern the poor, or the
guardians of the poor of the parish, under the management of the defend-
ants? for instance, out of what funds, and by what means were the poor
of the next parish provided for ? Suppose that the governors of the poor
of BrUtoi took 100 acres of land in another parish, and from the produce
of that land supported the poor, it cannot be contended that that land would
Bot be rateable, because the produce of it was applied to the maintenance
of the poor, who had laboured on the farm, or any of those who were unfit
(a) Rex V. Parrott, 5 Term llep. 593.
74
TERM REPORTS ik thb KING'S BENCH.
King*i Bench. ^'^^ labour, and had been left behind : bow could this constitute a better claim to
«^v^/ exemption from rateability in the parish where the property lies,than a losing
TbeGovERNORs occupation, which it is quite certain does not affect the question of liability.
The same rule must of course be applicable to every species of property.
We are therefore of opinion, that the buildings so held by the plaintiffs in
the parish of ^S*^. Philip and Jacob, were rateable to the relief of the poor of
that parish ; and that the verdict, according to the leave reserved, should
be entered for the defendants.
Rule absolute.
of the Poor of
Bristol
9.
Wait.
Graves v. Hicks.
Tesutor devised HPHIS was a case Sent by the Vice-Chancellor for the opinion of this Court
" '" """ ' upon the construction of a will. The will was of John HickSf of Piomer
** to the use of
J. G^andhbas. Hill House, in the county of BuckSf bearing date the 4th May, ISSl, who
t?"*of 1?"* ^" ^^^^^ having made by his will a devise of his property for life to his wife &c.,
natural life, wiUi- and Other estate for life of different property, went on thus : " And as to
of wMtT^ud im^ ^® **^*^ manor and other hereditaments and premises last hereinbefore
mediately after dcviscd, the samc shall, subje9t to the uses, estates, and charges herein-
said J^o*/' to before mentioned, remain and be to the use of my grandson, John Graves f
the only son of my late daughter, Sophia Elizabeth Graves deceased, by
Charles Gray Graves^ and his assigns, during the term of his natural life,
without impeachment of waste, and immediately afler the decease of the
said John Graves,** to trustees to support contingent remainders, ** never-
theless to permit and suffer the said John Graves and his assigns, during his
receive the rents, natural life, to reccivc the rents, issues and profits of the said manor and
fito"*and imme^ Other hereditaments and premises, and immediately after his decease, to the
diateiy after his usc of the first and sccond, and every other son of the said John ChraveSf
*^^the firstl severally and successively in remainder, one after another, according to the
trustees to sup-
port contingent
remaioders, ** ne-
▼ertlieless to
permit and suffer
J, G. and his as-
signs, during his
natural lifc^ to
use
second, and every priority of their respective births, and the heirs male of the body of such
said J. G.,se- SOU, SO that every elder of the same sons, and the heirs male of his body,
veraiiy and sue- gh^H always be preferred to evfery younger of the same sons and the heirs
mainder, one afUr male of his body." The tcstator made several codicils, but the fourth is the
iT^to'uie^wit ^"^^ ^"® ^'^^^ appears to be material to the question, and that run thus :
of their respecUve " And I do make and add this further codicil to my wiU, hereby revoking
he^*maie of the *°^ making null and void several of the dispositions heretofore made by me
body of such son, in my said will and codicils, of all ray freehold, copyhold, and personal
eider*of7be Mme ^statc and cffccts, of all and every kind and description, and instead, and in
sons, and the heirs the placc of such dcvisc, disposition, and bequest, therefore, I do give,
shall always be^' dcvisc, aud bequeath all and every my freehold, copyhold, and personal
preferred to every ggtatc and effccts of cvcry kind and description, whatsoever and wheresoever
younger of the ' . _
same sons and the situatcd, unto my daughter, Anna Maria Hearle ; and from and after the
b^d*""B°l**** <letermination of that estate, I give, devise, and bequeath the same unto my
f odicii, he de- graudsou, John Graves, and his heirs, in strict entail, as in my said will
Tised all his free-
hold, copyhold, and peisonal estate to his daughter A. M. H. for life, and after the determination of that
estate, to his *' grandson J. G. and his heirs, in strict entail, as in my said will directed : and in failure of
issue of the said J, G., he ordered that his said estate and effects should go and descend as is by his will
■directed :**-~IJM, that under this will and codicil, J. G. took only an estate for life.
EASTER TERM, 1836, 75
directed, with especial and positive orders, that iQ case the said John Graves KingU Bench.
diould not be 31 years of age at the time my said estate shall devolve on ^^/^/
him by the death of my daughter, that he shall not take or be put in pos- Gravks
session of the same until he shall have attained such age of 31 years, but Hicks.
that the rents thereof shall accumulate and be in the hands of my trustees
for the use and bene6t of my said grandson and his heirs ; and in failure of
issue of the said John Graves, I order that my said estate shall go and
descend as is by my will directed, &c.'* The testator died the 21st June,
1825. At his death, John Graces and Anna Maria Hearle were the heirs at
law of the testator, the first being the only child of a deceased daughter of
the testator, and Anna Maria Hearle, the only child of the testator living
at his death. The testator's grandson, John Graves, is living, and is un-
married, and was bom the 25th January, 1811. John Graves having by his
next friend, in November, 1835, instituted a suit in the Court of Chancery
against the widow, Francis and Anna Maria Hearle and the trustees, to have
the wiU and codicils ascertained, upon the cause of Graves v. Hicks coming
en to be heard before the Vice-Chancellor, it was insisted on the part of the
phintifr, John Graves, that under the testator's fourth codicil, the plaintiff,
John Graves, was tenant in tail general of the testator's estates in Bucking-
hmskire and Cornwall; and on the part of the defendant, it was contended
tliat John Graves was tenant for life only.
The Attorney-General, for the plaintiff. — Under the will and codicil, John
Graves took an estate tail general upon the determination of the estate for life.
The fourth codicil enlarged the estate to that extent. The other side must
Aom the intention of the testator to have been, that the daughter of the
frandaoDy or the sons who had daughters, should not take upon the death of
Jskm Graves, but that the estate should go over to Anna Maria Hearle ; this is
contrary to the manifest intention of the testator, for after the death of his only
son, Jakm Graves and his family were the objects of his bounty. The will
bad originally given nothing more than a life-estate to John Graves, The
fourth codicil in effect revoked that will, and gave a life-estate in the whole
property to Anna Maria Hearle ; but in compensation for this interposed
estate, John Graves was to take an estate of inheritance ; this intention is
dearly expressed by the words *' to John Graves and his heirs in strict
entail." The word *' heirs," coupled with a freehold in the ancestor, neces-
ttrfly creates an estate tail. If the testator had any other intention, it
would have been sufficient for him to say, ** after the death of my daughter,
Anna Maria Hearle, the said estates to go over to John Graves, as expressed
in ray will." llie same intention is manifested by the devise over after the
estate of John Graves, which is not in default of issue male, but on " failure
of Mue" generally. These words carry an estate tail ; Jesson v. Wright (a),
King V. RmnbtUl (b), Robinson v. Robinson (c). In the last case there was a devise
•fall the testator's real estate to A. B, for life, provided that he took the name
of Robinson, and aAer his decease, to such son as he should have, lawfully to
be b^otten, taking the name of Robinson; and for default of such issue
then over ; it was held, that A. B. took an estate in tail male ; that case has
been held good law ever since Coulson v. Coulson (d) decided the same point,
(«)3Bli|fa. 1. (r) 1 Durr. 3d.
(A) Cio. Jac. 448. {d) blranac 1125.
76 TERM REPORTS in the KING'S BENCH.
King*s Bench, although trustees were there interposed between the estate for life and the
v^v/^ devise over to the issue. Where the general intention of the testator is, that
Graves the estate should not go over till an indefinite failure of heirs of the first
Hicks. devisee, that devisee takes an estate tail ; Doe d. fVright v. Jesson (a), Roe
d. Thong V. Bedford (b). Doe d. Blanford v. AjfpUn (c), Doe d. Cole v. Gold^
smith (d). In the last of these cases it was said(c), ** It is an established
rule, that where a general intent appears, any particular intent, however
clearly expressed, shall never take effect where it is inconsistent with the
general intent." In this case the particular intent is not clearly expressed ;
the general intent is. There was a case in the House of Lords (/) where
the word " heirs'* was held tantamount to son or sons. The class of cases
where that rule is laid down will be found collected in Jarman*s edition of
Powell on Devises (g). The whole doctrine was discussed in lAsle v. Greii {h\
and Goodtitle d. Sweet v. Herring (i). — [Coleridge^ J. — Suppose the words
had been " my grandson </. G. and his heirs, in strict settlement, as in my
said will," what would have been the effect of it ; would it not have tied up
the earlier expression ?] Perhaps it might ; but here the devise has not
given rise to such a doubt, for the words must be taken to be used in a
technical sense ; Poole v. Poole (k). The other side must put a limited con-
struction upon the words *' failure of issue of John Graves" so as to exclude
the daughters of John Graves, and all the female issue of the sons of John
Graves ; but such an interpretation would entirely defeat the intention of the
testator. In Langley v. Baldwin^ the best account of which is given in
Peere WUUams (J), the Court held the words " in case A, should die without
issue male of his body," did in a will make an estate tail. The same rule
was held in Halanson v. Clitheroe (m), and Banks v. Holme (n). It camiot be
contended, therefore, that as in Doe d. Beane v. Halley (o), the words gave
an estate for life to John Graves, with remainder in tail male to his first and
other sons. In that case the testator showed a decided preference to the
male line, which he has not done here, and there is no reason for supposing
that the daughters of John Graves, or the daughters of the sons of John
Graves, were intended to be excluded. The codicil gives the estate tail at
once to John Graves, and all his issue take through him iu the character of
heirs. This, therefore, is an estate tail general on the determination of the
life of Mrs. Hearle.
Cowling, contrd. — John Graves took an estate for life, with remainder to
his first and other sons, and then a remainder over. The fourth codicil made
no difference in the will, and the estate given to John G raves* s children was
only an estate tail male, and not an estate tail general. The fourth codicil
was made because John Graves was at that time quite a child, and the tes-
tator desired to prevent the evil of such a boy becoming possessed of con-
siderable property, before he knew how to manage it, or protect himself.
The House of Lords has already had this will before it(f;), and has decided
(a) 5 Maule k Selw. 95. (t) 1 East, 264.
(6) 4 Maule k Selw. 362. (He) 3 Bos. & Pul. 620.
(c) 4 Term Rep. 82. (/) 1 Peere Wms.759.
(d) 7 Taunt. 209. (m) 1 Ves. sen. 24.
(e) Id. 212. (n) 1 Russ. 394.
If) Jack V. Featheritonhaugh , scss. 1835. (o) 8 Term Rep. 5.
(g) Vol. 2, p. 845. (p) Doe d. Hearte v. Uich, 1 Clark &
(/») Sir T. Raym. 278, 302, 315. Finn, 21.
EASTER TERM, 1836. 77
that the words in the fourth codicil are to be confined in their meaning to King's Bench.
what is called the residue. If an estate tail is implied in the plaintiff, the
residuary clause is nonsense, for the holder of an estate tail may bar the
remainder. — [_Pattesvn, J. — ^Yet in one part of the will he gives the estate to
his son for life, and to his son's heirs in tail, and then the remainders over. —
Coleridge^ J. — And if the argument was decisive, it would apply in a
thousand cases.] — The testator clearly meant that his large funded property
should go in the same way as his landed property, and in disposing of
one, as well as of the other, he uses the word '* heirs." It is clear, there-
fore, that a technical sense cannot be affixed to that word. Where there is
a devise of an estate to a person for life, and then a clause containing the
phrase^ '* on failure of issue," that must mean on the failure of such issue as has
been before mentioned. This was evidently the son or sons of John Graves.
Langiey v. Baldvin, and Doe d. Beane v. HaUey^ do not support the doctrine
for which they are cited. In Blackburn v. Hewer EdgUj/ (a), the Court
held, that where lands are devised to A, for life, remainder to trustees,
remainder to his first, &c. son in tail mail ; and i£ A, dies without issue,
then, &c. ; this will not give an estate tail to A,, but the words *' without
issue" must be intended " without such issue." The intention of the tes-
tator as to the ** heirs'* and '' issue," is shown in the words " it shall be
lawful for my said son and grandson respectively to charge the residuary
estate for the benefit of younger children." In Morse v. The Marquis of
Ormond (6), it was held, that the words " on failure of issue" had no general
meaning, and the subsequent appointments for legatees were held to take
eflfect. This case was confirmed by the Chancellor upon appeal (c). On all
these authorities, it is clear that the " failure of issue" is a mere repetition of
the words *' such issue." The intention of the testator, after the failure of
part of his family, was to give a larger estate than before to Mrs. Hearie^
and therefore he did not give so large an estate as is now contended for to
/. Graves. It is not, therefore, necessary to discuss the cases of Robinson v.
BMnson^ and Coulson v. Coalson, for the intention of the testator is expressed
with sufficient clearness to take away the necessity of the Court deciding by
implication. Jack v. Featherstonhaugh is not applicable to the present case,
Ibr the only question there was, whether the devisees took by purchase or by
descent, for if by descent, it was clear that it was an estate tail. There are
two ways of looking at this codicil. It might be said that the testator
changed his intention and converted a life estate into an estate tail ; but the
tuore natural reading of it is, that John Graves would have an estate for life,
vitb remainder to his first and other sons. Bennett v. Lome (d) is an autho-
rity for thus construing it. There the use of the words " in default of issue"
was held not to enlarge a prior estate for life. The fourth codicil deprives
John Graves of several advantages. What ground is there then for saying
that it was meant to enlarge his estate. Lord Chief Justice Tindal, in the
coarse of his judgment on this very will (e), says, that it is obvious that the
fourth codicil was made by the testator without legal assistance. Why then
give to the words it contains a technical meaning, which will make them
!:
•) 1 Peere Wms. 600. 605. (d) 7 Bing. 535.
») 5 Hadd. 99. («) 8 Diog. 488.
(e) I Ross. 382.
78
TERM REPORTS im the KING'S BENCH.
V,
Hicks.
Ki$ig*t Bench, conyey an enlarged estate contrary to the intention of the testator, as ex-
v^\^^ pressed in other parts of the will.
Graves
The Attorney-General, in reply. — The decision on this case in the House of
Lords turned on a totally different point, and cannot affect the present argu-
ment. What the testator has said in the other codicils cannot affect the present,
for it was made under difierent circumstances, and was therefore framed with
a different intention. None of the cases cited support the proposition con-
tended for on the other side. In Bennett v. Loioe, no reasons are given for
the judgment, hut from the course of the argument it is manifest that the
Court decided it on the pl&in principle of giving effect both to the general
and particular intent of the testator. That cannot be done here, and it is
clear that none of the children of the first devisee were intended to be de-
prived of the bounty of the testator.
On the 2d Febrttarif, IS3G, the following certificate was sent to the
Vice-Chancellor : —
*' This case has been argued before us by counsel, and we are of opinion
that the plaintiff*, John Graves, takes an estate for life in each of the estates
in Buckinghanuhire and Cgrnwall, under the will and codicils mentioned
therein.
** J. Patteson,
J. Williams,
John Taylor Coleridge."
(a) Lord Dtnman, C. J. was not present attend the King in Coancil at "Brighton*
at the argument, having been obliged to
Bail Court,
Ad action
agaiiut executorSp
who pleaded fltm*
mdrnjuistrmvit, waa
referred to arbU
tration, pending
which a tliird
person recovered
judgment by de-
fanlt against them
in another action ;
the Court then
allowed this judg-
ment to be plead-
ed as a plea puis
Ssrreim eomlum-
mme« before tlie
arbitrator.
Alder v. Park and Iveson.
npHIS was a rule to show cause why the order of reference in the cause
should not be revoked, unless the plaintiff* would consent that the defend^
ants should be at liberty to plead a plea pws darrein continuance before the
arbitrator in the cause, and that without the affidavit stating that the matter
arose within eight days next before the pleading of such plea ; and why the
order of reference should not be amended so that the defendants might only
be liable as executors, and the submission to arbitration not be an admission
of assets. The action was brought on the S 1st of October, 1833, against the
defendants as executors. The testator had conveyed an estate to the plain-
tiff^ and had covenanted that it was tithe free, and that a certain modus was
good. It was for breach of this covenant that the action was brought.
There had been a plea amongst others pleaded, that the land was in fkct
tithe free, but that plea had been withdrawn, and the cause had been referred
to an arbitrator on a plea ofplene admimstravit, whether the defendants had
assets, and what amount of damages the pliuntiff* had sustained. The order
of reference was dated the 10th o£July, 1834. It appeared that there had
been a tithe suit instituted against the plaintiff* to recover the tithe of the
land in question, which had lasted for ten years, and was ultimately decided
against the plaintiff*. The assignees had in their hands a sum of 1 200L and also
a dock share, which had been specially bequeathed by the defendants* testa-
tor. Various questions as to what were assets in the defendants' hands, and
EASTER TERM, 1836. 79
ocber matters arose for the arbitrator's decision, and on the 19th oi Jtme^ Bail Court.
1835, pending the reference, an action had been brought on a bond against ^^v^>
the defendants as executors. It was an adverse proceeding for a hand fide Aldeh
debt, and was not brought by collusion with the defendants. The defendants p^nK&lTxsoif*
confened the action, and judgment was signed on the 2nd of August. No
award had yet bean made ; it was the intention of both parties that sereral
questions of law should be raised on the award, in order to obtain the opinion
of the Court. The arbitrator had enlarged the time for making his award,
in order that this application might be made to the Court.
Toa^ntan showed cause. — The object of the defendants is to plead the
judgment recovered against them in the second action, which will have the
e£^ of preventing the plaintiff recovering the amount of his claim. It was
the defendants* own fault that judgment was recovered against them in the
acdon on the bond, though they had no defence to make to the bond itself.
It is now acknowledged that the defendants have a sum of 1200/. and a dock
bond in their hands ; they ought therefore to have confessed assets to that
amount in this action, and then they might have pleaded in the action on the
bond, that they had already confessed assets to that amount in an action that
Wit still pending. Such a plea was held to be good in the case of Waters v.
(%dem (a). Having disabled themselves from pleading such plea in the second
actioB, by having denied assets in this action, the defendants might yet have
Bade application to a judge to amend the plea in this action, for the purpose
of pleading such a plea in the second action. They have neglected to do so,
and the Court will not now interpose and give the plaintiff in the second
action all the benefit of these assets, the plaintiff in this action not being in
fiuilt at all. The defendants also, by their false pleading, have deprived
diemselves of the interposition of the Court. The defendants' only remedy
is by application to a Court of Equity. The opinion of Sir James Mansfield^
in the case of Brady v. Shetl{b), shows, that by application to a Court of
Equity the defendants might have compelled these parties to take an equal
distribution of assets. The latter part of this rule, as to the liability of the
defendants as executors, is unnecessary, and under the circumstances this
Court will not interfere, but will leave the defendants to their remedy in a
Court of Equity.
fFtgkinum^ conir^. — All that the defendants ask for is, that they should
Bot be placed in a worse situation, the cause having been referred to arbitra-
tion, than they would have been had the cause been still pending before the
Court. Had this cause been still so pending the defendants would clearly
have been entitled to plead the judgment recovered in the second action, as a
plea puis darr&n continuance. The defendants admit they have assets to a
certain amount, and it is immaterial to them to whom they are paid. By
die judgment in the second action they cease to be assets in their hands, and
diey were perfectly justified in not defending that action if they had no valid
deface. The case of Prince v. Nicholson (c) is an authority to show that
executors may plead puis darrein continuance, a judgment recovered in an
action subsequently commenced against them, in which they had suffered
idgnent by defimlt. A plea in the second action, similar to that pleaded in
(i) DoogL 435. (6) 1 Caropb. 148. (r) 5 Taunt. 665 ; 1 Marsh. 280.
80 TERM REPORTS in the KING'S BENCH.
Bail CouH. the case of Waters v. Ogden, would not have protected these assets, this
^^^>'^^ action being for unliquidated damages. Had these defendants confessed
Alder these assets instead of denying them, in the first instance, the plaintiff would
Park&Ivfson. ^^^ have been entitled to them, but the cause would still have proceeded on
the merits, to ascertain what the plaintiff was entitled to. Suppose this
second action had then been brought, the defendants must have pleaded
assets to the same amount, and judgment having been recovered in this
action this same application must have been made, so that by the denial of
assets there has been no alteration in the relative state of the parties. Per-
haps, afler all, the plaintiff in this action may not be entitled to recover any
thing whatever. The only question to be decided is, whether or not the
defendants are entitled to this plea.
Williams, J. — The only part of this rule which I am disposed to accede to,
is that part which respects the question of how far, under the circumstances
of the case, the judgment recovered in the second action should be alloweil
to come before the arbitrator, with reference to the effect of it. The latter
part of the rule, which seeks to keep the party from a liability to which he
is subject, I see no reason for, as it is the immediate result of the submission
to the arbitration. The former part of the rule seeks to place the defendants
in the same situation they would have been had the cause been still pending
before the Court, instead of being referred. So far it appears to me to be
fair and reasonable to grant the rule ; for if the defendants are allowed to
plead the judgment in the second action as a plea puis darrein corUinuancef
the effect of such a plea will still remain open for the arbitrator. To that
extent, therefore, I am inclined to make this rule absolute. The rule will
be absolute, therefore, as to the pleading puis darrein continuance only.
Rule absolute accordingly.
Harding and others v. Manners.
DittrtMiiu for HPHIS was an application for a distringas, for the purpose of proceeding to
procM^S^to out- outlawry against the defendant. The following circumstances appeared
Uwry granted, ai- on the affidavit. The defendant lefl this country four years back, with intent
caiis^ad^ to delay his creditors. Shortly aAerwards all his goods were sold, and he
been made at the ^ow posscsscd nonc in the couutry. The house where he had last resided,
place of abode, aflcr being about two years unoccupied, came into the possession of the
defendant's brother. The affidavit also stated positively that the defendant
had ever since resided in France with the intention of delaying his creditors.
The deponent had made inquiries about the defendant at his last place of
abode, and was told that it was not known when he would return. He after-
wards went over to France, but was unable to meet with him. A pluries
summons issued on the 18th o£ April.
G, T, White, — Under these circumstances the object of the distringas
being to proceed to outlawry, and not for the purpose of compelling an
appearance, it is unnecessary to comply with the usual practice req^uiring
Haidino
EASTER TERM, 1836. 81
those calls to be made at tlie defendant's residence. In the case oi Jones v. Bail Court.
Price (a) the Court said, " There may be sufficient to entitle you to have a
duirtMgas to proceed to outlawry, when you would not be entitled to a dis-
tringas for appearance." This is a stronger case, as it is positively sworn the Manneiis.
defendant's object in going to France^ and continuing there, was for the
porpose of dekiying his creditors.
Williams J. — I must grant the rule under those circumstances.
Rule absolute.
(a) 2 Dowl. P. C. 42.
Masters v. Tickler.
l^HIS was an action of assvmpsitf to which the defendant pleaded non a plaintiff having
assmnpsU and a tender, and paid money into Court. The jury found a I!^Irtt*$ym of
verdict for the plaintiff for 6/. beyond the sum paid into Court, which, together ^°^^^J beyood
with the sum paid into Court, exceeded 201. The Master taxed the costs as i^^ cow^t^
if the verdict had been for more than 20/. *'»« »»«• together
amounting to
more than SO/.—
Plati moved for a rule to show cause why he should not review his taxa- ^^^*. '*»»V'**
'' taxation of costs
tion. He submitted that the verdict having been for G/. only, the costs ought ought not to be
to have been taxed according to the reduced scale given in the directions to J|^|^^,^"f
the taxing officers in H. T. 4 IV. 4. {a),—[JVilliams, J.^-The words of h. t. 4 w. ♦.*"
the direction are,' "Where the sum recovered or paid into Court, &c.*']
That is so worded to meet the two cases, first, where a sum is paid into Court
and accepted by the plaintiff in satisfaction of his l^^ole demand, and secondly,
where the plaint iff recovers by verdict alone ; but will not meet this case when
psrt is paid into Court and part recovered by verdict, so making together more
than 201.
Williams J. — I must think that both the sums are a portion of the sum re-
covered in the action, and therefore the whole amount recovered being above
SO/., it seems to me that the taxation ought not to be on the reduced scale.
Rule refused,
(a) 2 Dowl. P. C. 489.
The King v. Connop and others.
THE defendants were indicted at the Central Criminal Court for a conspiracy CirtiormH to re-
X , * . move an indict-
to defraud Letfy from having the benefit of his property m the nctorta „ent ftom the
nadre. A certiorari had been applied for by some of the defendants to ^i;*^!^^*
'^oiofe the indictment into this Court, on the ground that it would involve although one of
the defendants
did not couseot to U, ho appearing to coUade wUh th« prosecator.
The Kino
V.
82 TERM REPORTS in the KING'S BENCH.
Bail Court, several questions as to the rights in the property which were also about to he
discussed in a bill that was pending inequity between the same parties, and that
it was necessary to have a special jury (a). It then appeared that the delend-
CoNvop. ants, eight in number, had not all given their consent to the indictmant
being removed. Time having been given to obtain the consent of the others ;
The A Uometf 'General and Hoggins^ on the part of some of the defendants,
renewed the application, on an affidavit stating, that the consent of ally except
one, had been obtained, and that the deponent believed that one colluded
with the prosecutor in order to prevent the removal of the indictment. They
contended that under these circumstances it was not necessary to have the
consent of that one defendant, according to the general rule laid down in The
King V. Hunt (b) and The King v. Caldecott, (c)
Humfrey consented to the application, on the part of the other defendants,
except the one mentioned.
PkUt conirdt showed cause in the first instance, and contended that the
case of The King v. Hunt was an authority to prove that it was absolutely
necessary to have the consent of all the defendants ; and that such was tb*
opinion of this Court, when this application was first made, was shown by thfi
Court giving time for obtaining the consent of all the defendants.
Williams J. — Ordinarily speaking a certiorari is granted on n ex parte
statement, but it is more desirable that the aflUdavits of both parties should
be before the Court, and that course has been adopted in this instance with a
view to conform to the cases of The King v. Hunt and The King v. Caidecott*
I gave time to see if all the defendants would concur in this application, but
I did not then say that if the consent of any one were not obtained I should
not allow a certiorari to issue. Iq the case of The King v. Hunt the matter
stood over to obtain the consent of all the defendants, and the same has beeii
done here. Now, I am to judge on the whole matter as to the reason given
for the non-compliance of one of the defendants, and it seems to me on these
affidavits (which are put in in the same course as was observed in The King v.
Hunt), that I ought not to prevent a certiorari issuing, so as to obtain a more
full inquiry into a case which is as fit as any other that could be named to be
tried before this Court.
Certiorari granted.
(a) The King v; Wartnaby, 2 Adol. & Ell. 435. (c) 3 Dowl. P. C. 315.
(6) 2 Chit Rep. 130.
Smith t;. Alexander.
A pwtoa, ift ordar fpHE defendant had been discharged under the Insolvent Act, 7 Geo. 4. c. 67,
to obtain ntm •*j*t.*ijiii» i /. « ..
credit, offeved to auQ m his scheaule had mserted a sum of 27 L as due by him to the pl^in-
ghre a warrant
of attorney for the amount, as well aa for an old debt, for which he had been discharged under the In-
solvent Act, and on his soliciution the creditor was induced to take it and give the credit :— /i«/tf, that the
wurtot of ittoiMy waa not good for the amount of the old debt.
Smith
V.
EASTER TERM, 1836. 83
tiff. After his discharge, the defendant applied to the plaintiff for some Bail Couru
goods and for the loan of some money, and in order to induce him to
give him the credit he wanted, he himself proposed to give a warrant of
attoniej for the amount of what he was in want of, and also for the old Alixakdib.
debt of 27^. The plaintiff was accordingly induced to lend him the money
and adTo&ce him the goods, and took a warrant of attorney, as the defendant
proposed, for 48/., which included the whole debt of 271. Judgment having
been entered up, and execution issued on this warrant of attorney, a rule was
obtained last term to show cause why the warrant of attorney should not be
set aside and delivered up to be cancelled, and why satis&ction should not
be entered for the sum of 271., for which the defendant had been discharged
under the Insolvent Act, being part of the sum for which the warrant of
attorney had been given, and why it should not be referred to the Master to
aseertaiQ what was due to the plaintiff, and why he should not pay the costs
of the reference to the Master, and of this application. The rule having
been enlarged until this term,
Hwmfirty showed cause. This warrant of attorney was perfectly legal, and
was not in contravention of the Insolvent Debtors' Act, 7 Geo. 4. c. 57. The
HDoant for which it was given is like a new debt, although the old debt of 27/.
was imdaded. This is not a case where a creditor has pressed an insolvent,
ud has procured for him a security for a debt, from which he has been dis-
diarged under the Insolvent Act. Here the proposal to give the warrant of
•ttomey originated entirely with the defendant; his only object was to
indace the plaintiff to give him fresh credit, and it was only on the defend-
mC's solicitation that the plaintiff complied with his request. There was, in
eomeqaence, a bond fide loan of money, and advance of goods, by the plain-
tiff to the defendant ; and, under these circumstances, this warrant of attor-
ney is not within the 61st section of the Insolvent Act. It appears, also,
diat by the latter part of that section, that the course which the defendant
should adopt to take advantage of it, is to plead his discharge ; he cannot
dierefbre have the remedy sought for by this rule.
C. C, /ofief, eontrh. — ^This claim is not good in law. By 7 Oeo, 4, c. B7^
B. 61, it is provided, that no fieri facias shall issue in any action, upon any " new
emUraet or security,** for payment of any debt for which the defendant has been
&charged under the act. This warrant of attorney is a new security, and
the act is conclusive, that no execution shall issue on it. It is said, that the
plaintiff was induced to take the warrant of attorney on the solicitation of the
defendant ; but that will not avoid the act, or make this security legal. The
caie of Evans ▼. fViUiams (a) is conclusive as to this question. That was a
esse of a new contract on an old debt; and Lord Lyndhurst says, *'The
defendant executes a fresh note, including the same sum of money. That
note was for the same debt, or sum of money, for which the defendant was
liable before. The 7 Geo. 4, c. 57, s. 61, enacts, that no action shall be
I'TODght for any such debt or sum of money, or upon any new contract or se-
^tj for payment thereof. Now, is not this a new contract for the same debt or
*Bni of money ? The only new ingredient is an additional consideration thrown
(a) \ Cromp. & Mees. 30.
q2
84 TERM REPORTS in the KING'S BENCH.
Bail Court in.'' So here, although there has been an additional consideration thrown in,
v*v^ it will not make the security valid. The intention of the act was to insure
Smith ^.^^^ ^^y fu^Q^e effects of the insolvent, obtained after his discharge, should
Alexander, he divided rateably amongst his creditors, and that no one of them should be
preferred before the others. The effect of this warrant of attorney is to
give the plaintiff a preference ; and this rule must, therefore, be made ab«>
solute.
Williams, J. — It seems to me that the language of the act is very strong,
and the case cited shows that the Courts will act to the extent of that lan-
guage, which is large and general in the extreme. Section 61 provides, that
''no writ o{ fieri facias^ or elegit shall issue on any judgment obtained
against such prisoner, for any debt or sum of money with respect to which
such person shall have so become entitled ; nor in any actum upon any new
contract or security for payment thereof, except upon the judgment entered
up against such prisoner according to this act.'' The form mentioned in
that exception has not been followed here. Here a warrant of attorney has
been given ; I grant that it was at the particular request of the defendant,
and for the purpose of getting a fresh loan of money and new credit, but it
was without a reserve of the amount of the old debt. Now, is it possible
for me to say, this is not a new security for the payment of a portion of that
for which the defendant has been discharged ? Mr. Humfrey has observed,
on the latter part of the section, that if an action is brought, the defendant
must plead his discharge under the act. That certainly is the case ; and, if
an action had been brought, that is the mode he would have been obliged to
adopt, as was done in the case of Evans v. Williams, But here a plea is out
of the question, as the defendant has had no opportunity of pleading it ; and,
therefore, if the judgment on this warrant of attorney is not to be set a9ide,
on an application like the present, then this new security is wholly without
the means of impeachment. The language oiBayley, J. is strong in the
case referred to. *' It has been urged, that the defendant, after his dis-
charge, was in the same situation as any third person. I think that he
stands in a different situation, and that the act of parliament prevents him
from incurring this liabihty in the manner in which another person might
have done." He was clearly of opinion, that that argument would not apply
to such a party. I also think that the language of the act is too strong, and
that, in whatever shape a party tries to get a new security, that it would be
void to the extent for which the prisoner had been discharged under the
Insolvent Act. This warrant of attorney, therefore, must be set aside to the
extent for which the defendant was discharged, and can only stand for the
new consideration. It must be referred to the Master to ascertain what is
due on the new consideration. I shall say nothing about costs, as it was the
defendant himself who solicited the plaintiff to take this warrant of attorney
in order to induce him to give the new credit.
Rule absolute accordingly (a).
(») See Gould V. Williams, 1 Har. & Wol. 344, and 4 Dowl. P. C. 91.
EASTER TERM, 1836. 85
Bail Court.
Ex parte Lawson.
MR. Lawson had served his time with Mr. Bicknell, who was a solicitor of An attorney
. ^ /•i'^ ¥¥ ^"° waoted to go
the Court of Chancery^ but was not an attorney of this C/Ourt. He abroad to prac-
bad given the proper notices for his admission as a solicitor in the Court of ^^^^^^^^n
Chancery, which would entitle him to be so admitted on the last day of this the last day of
term. He would then be entitled, as a matter of course, under the practice to*thuTn'*!I^di**
as it existed previous to the late rules, which had not yet come into force (a), he would strictly
to be admitted an attorney of tliis Court any day next term. ^^^^
Sir JVilUam FoUett now (May 5th) moved that he might be admitted
instead on the last day of this term {May 9th), under these circumstances: —
A person who had been practising as an attorney at Paris was lately dead,
and Mr. Lawson had been requested to go there and take his business, which
he was about to do. It was necessary he should be admitted as an attor-
ney of this Court ; and if he was not now admitted, it would be necessary
for him to come over from Paris during next term. That would be very
inconvenient, as there was much business which required his personal atten-
tion. He referred to the case of Ex parte Htdme {b) as a case where a
nmilar application was granted.
Williams, J.^It seems to me that if there is ever a reason for dispensing
with the general rule, this is such a case.
Rule for his admission on the last day of the term.
(«) See these rules, 1 Har. & Wol. p. 637. (6) 1 Bar. & Wol. 366, and 4 Dowl. P. C. 88.
Maroetson r. Tugghe.
^HIS was a rule to show cause why the defendant should not be discharged it is necessary
out of custody on fihng common bail, for irregularity. The irregularity Jj^\.^"f*tht^de-
complained of was, that in the affidavit to hold to bail, and in the capias, the fendant should be
defendant was called ** — Tugghe,'* without any Christian name, and ^^^ «>•''" o
without any description whatever. The affidavits in answer, stated the dif-
ferent inquiries that had been made to ascertain the name of the defendant,
who was a foreigner, and did not reside in this country, but was only here
for a temporary purpose. The cause of action, also, appeared to have arisen
Uk France,
CUlioHf showed cause. — The affidavits in answer sufficiently account for
tlie defendant's Christian name and residence not being inserted. All rea-
Noable inquiries have been made, and due diligence has been used to find
them ; and the case of Hicks v. Marreco (c) is an authority to show that
sufficient inquiries have been made in this case. In the case of Clothier v«
£m((Q the affidavit was not entitled in the causCf and that therefore is not a
(c) 1 Cfonp. & Mees. 84. (d) 2 Dowl. P. C. 731 ; 3 Moore & Scott, 216;
s
BmU Ceurt.
II.ARCETSON
V.
TVOOHK.
TERM REPORTS in the KING'S BENCH.
case that applies here. — [Williams^ J. — Are you aware of any case where a
capias has been held to be good that contained no description whatever of
the defendant?] — It is probable from the nature of the case, although the
report says nothing on the subject, that in Hicks v. Marreco the capias was
in the same form that the affidavit of debt was. In Hill v. Harvey (a) it was
held sufficient to state in a capias the defendant's late place of residence.
/. /. WiUiamSf contrdf referred to the cases of Finch v. Cocken (6), Bosler
V, Levi^c), and Price v. Huxley (jd).
Williams, J. — I shall take time to consider, as I think it probable there
may be found a distinction between a capias and a summons, as observed by
Taunton, J. in the cases of fFelsh v, Lang ford (e) and Buffle \, Jackson {/),
Cur, adv. tndt,
Williams, J. the next day {May 6th) gave judgment. — With reference to
the affidavit to hold to bail, my impression is rather in favour of Mr. Chil-
ton's argument^ that the explanation given on his affidavits, for not giving a
better description, is satisfactory ; but the question arises on the capias.
The capias is " Tugghe,'* without any thing more; and the question
is, whether or not a name, without any description whatever, is sufficient in
a capias. Now, in the early cases which arose on the Uniformity of Process
Act, 2 & 3 Will, 4, c. 39, a distinction was taken between the form of the
summons and of the capias^ and this distinction was founded on the
language of the 1st and 4th sections of the act. The 1st section has
reference to the writ of summons, the 4th to the capias. In the 1st, by the
section itself, it is enacted, that '^ in every such writ and copy thereof, the
place and county of the residence or supposed residence of the party
defendant, or wherein the defendant shall be, or shall be supposed to be,
shall be mentioned." Therefore, in the writ of summons, by the section
itself, there is an express direction that the residence of tlie defendant shall
be mentioned ; but in the 4th section, wliich has regard to the capias^ there
is no such direction. There it is enacted, that the writ of capias should be
'* according to the form contained in the schedule marked No. 4." In the
cases of Welsh v. Lang ford and Buffle v. Jacksoti^ I find a distinction was
taken between the 1st and 4th sections of the act; and that it was held, that
a great generality of description provided there was some was sufficient (g). In
the first of those cases this description : " Captain Langfordy of the Honorable
East India Company's Ship Kelly Castle^ and now most likely to be found
at the East India House in Londony" was held sufficient ; and there could
not surely be a more general description. In the case that has been lately
decided of Hill v. Harvey ^ I observe that the only two judges who gave
their reasons state, that the description of the defendant in the capias is
intended for the guidance of the sherifT. But I do not myself see how '* late
of Launcestouy in the county of Cornwall^'' could be any assistance to the
(a) 1 Gale, 185 ; 4 Dowl. P. C. 163 j 2
Cromp. Mees. &c Ros. 307.
(6) 1 Gale, 130; 3 Dowl. P.C. 678; 2
Cromp. Mees. &t. Ros. 196.
(c) 1 Biog. N. C. 362.
(d) 2 Cromp. & Mees. 211,
(«) 2 Dowl. P.C. 498.
(/) 2 Dowl. P. C. 606.
(^) See also Morris v. Davtei, 1 Har. &
Wol. 613 ; 4 Dowl. P. C. 317.
EASTER TERM, 1836.
fhmff cf Middkseg ; or, ** late of Brussels, in the kingdom of Belgium" could
asBist the sheriff of any county ? The probable reason on which those cases
were decided may be found l^ examining the schedule No. 4. By the form
there given the sheriff is directed to '* take C. 2>. of , if he be found
in your bailiwick, &c." That form being part of the act itself, the word
" of/* there found, has been held in the case of Hill v. Harvey to be intended
as a designeUio jtersofue, from whence it follows that some description is
necessary. That seems to be the reason of those decisions ; but, however
that may be, this very point has been decided two days since in the Court of
Mxchequer, m the case of tVard v. Waits (a). In that case, as in this, there
itas no vi^e, uncertain, or rambling description of the defendant in the
capias, but none whatever. The capias having been held defective in that
case, I am bound to say, that here this capias also, having no description of
the defendant whatever, is defective, The rule must be made absolute, on
the terms of no action being brought. I shall make no order as to the costs.
87
Bati Court.
Marobtion
V.
TVOOHS.
Rule absolute accordingly.
(a) 5Dowl.P.C.94.
Lashmarv. Claringbold.
rPHlS was a rule obtained by the sheriff under the Interpleader Act, 1 & 2
Will, 4, c. 58. The affidavit, on which the rule was granted, stated,
that on the 19th oi January a Ji, fa. issued, indorsed to levy the sum of
82/. 9s. lOd., and that on the same day it was put into the sheriff's hands.
It also stated, that the sum of 82/. 9s, \0d. had been received by the sheriff
m satisfaction for the goods seized ; but did not state when the sale had
taken place, what was the whole amount received for the goods, or when
this sum was received by the sheriff. On the 17th oi March, notice of a
fiat having issued against the defendant, and that the money in the sheriff^s
hands would be liable to the claim of the assignees, was delivered to the
sheriff*. Application had since been made, by the solicitor for the assignees,
far the money, and on the 15th oi April the sheriff was ruled by the plaintiff
in the cause to return the writ. The execution was on a judgment upon a
warrant of attorney.
Ciofmei, for the assignees under the fiat.-^The sheriff is not entitled to
the relief sought for by this rule. It does not appear when the sale of the
gooda, taken in execution, was effected. The sale, therefore, might have
been after the act of bankruptcy, and then it would be wholly void as against
the assignees. The assignees are entitled to the whole value of the goods,
mi it does not appear what that was. If any issue at all js directed to be
tried, it most be for the value of the goods sold.
C. Turner, ^r the execution creditor. — The affidavit on which this rule
ihm gfanted m very unsatisfactory, as it does not appear when the sheriff
received the money finr the goods. It may be, that he received the money
two mootbf before he had notiGe of the fiat. This is an execution on a war-<
The Court re-
fused to give a
siieriff relief un-
der the Inter-
pleader Act,
where a j8. /«.
was delivered to
him two months
before notice of a
fiat having issued
against the de-
fendant, and no
reason was as-
signed for the
delay in the exe-
cution.
88 TERM REPORTS in the KING'S BENCH.
Bail Court, rant of attorney ; .and if the act of bankruptcy was committed before the
v^^/^ sale of the goods, the money belongs to the assignees ; but if after, to the
Lashmar execution creditor, even though the money has not been paid over by the
Clabinobold. sheriff; Morland v. PeUatt{a\ Wymer v. Kemhlc{h), The sheriff ought to
have ascertained when the act of bankruptcy was committed, so as to see
whether the assignees or the execution creditor was entitled to the proceeds
of the sale.
/. Bayley, for the sheriff. — The sheriff has done all that this act of parlia-
ment requires. It only requires, that as soon as this claim is made the sheriff
should apply to the Court. Here the first notice of claim was on the 17th
o£ March; on the 15 th of April the sheriff was ruled to return the writ, and
the next day, which was the second day of the term, this rule was moved
for. — [^IViUiamSi J« — No objection is made to the time when tlie application
was made. Does it appear at what time the sale of the goods took place ?]
— No, it does not ; but the time when the sale took place is not, in all cases,
the material fact on which the validity of the execution turns. It is sub-
mitted, that in this case the time of the sale is not material. The assignees,
at any rate, cannot now claim the value of the goods, but only the amount
received by the sheriff; as their notice of claim was for the monies levied by
the sheriff by virtue of the execution.
Williams, J. — I confess this does not seem to me to be a case in which
the Court can interfere in order to protect the sheriff, as, on his own affida-
vit, it docs not appear he has used due and ordinary diligence. How does
the case on his own affidavit stand? On the 19th oi January, it appears
the writ of ^. fa, was issued, and delivered to the sheriff for execution. So
far so good : but the affidavit discloses no fact to show why the sheriff did
not carry the writ into effect, and make the levy directly. Now, the next
date we come to is the 17th of MarcA, when the sheriff received the notice
of the fiat having issued. Suppose it had so issued ; if the sheriff had
levied and sold the goods, and paid over the money within a week or a fort-
night, the act of bankruptcy would have been immaterial, and the assignees
could not have touched the sheriff. Therefore, if by not making a levy at
all, when he might have done so, or by making the levy and keeping the
money in his hands, he is placed in a difficulty which is caused entirely by
his own delay. One of the cases which has arisen (c) has decided, that a
delay of eleven days is too great to entitle the sheriff to relief under the act ;
and, on the authority of that case, I felt bound to decide a case that came
before me in this Court (rf). Those cases show the sheriff must be prompt
in his application. In this case, it is not a question as to the time of the
sheriff's application to the Court, but the time that the sheriff has taken to
make the levy. No explanation for the delay has been given, and the
sheriff would have been in no difficulty had he made a prompt sale. The
rule must therefore be discharged : but I shall make no order as to the
costs.
Rule discharged without costs.
(o) 8 Bam. & Cress. 722; 2 Man. & (c) Cook v. AlUn, 2 Dowl. P. C. U ; I
Ryl- 41 1 . Cromp. & Mees. 542 ; 3 Tyr. 586.
(h) 6 Bam. & Cress. 479; 9 Dowl. & (d) Rirf^av^-Fwher, ifiar.&Wol. 189;
Byl. 511. 3 DowU P. C. 667.
EASTER TERM, 1836. 89
Bail Court,
Smith v. Heap.
T^HIS was a rule to show cause why the bail-bond should not be delivered An «ffi<UTit or
up to be cancelled, on a common appearance being entered. The aOida- ^t^«tti?,^*
Tit of debt stated the debt to be due for the agistment of cattle, but omitted umsttuteit to
to state they were agisted " at the request of the defendant/' uI^^r^sTo^th.
defend tilt."
G. T. White^ showed cause. — ^The rule H. T. 2 W. 4, s. 8 (a), does not
apply to this case, as it only directs, that affidavits to hold to bail for money
pmdf or for work and labour done^ must state it to have been '* at the request
of the defendant." That rule, moreover, arises out of the diflTerence in
practice which previously existed in the Courts of King's Bench and Common
Picas. In the Court of King^s Bench it was held, that an affidavit was not
sufficient which omitted the words " at the request of the defendant ;" DurU'
ford T. MessUer^b), Pitt v. New{c) ; but in the Court of Common Pleas the
contrary rule was observed ; Eyre v. Hutton {d\ Bliss v. Atkins (e), Berry
V. Femandes (/). The rule, therefore, does not affect the practice of this
Court.
Humfrey^ contrd, — The cases mentioned in the rule are only put by way
of example, and it is not intended that the rule should be confined to those
cases only. In the case of Witham v. Gompertz (g\ Lord Abinger approved
of an affidavit as in accordance with the form given in Tidd^s Practice, On
referring to that book it will be seen, that the form given for the agistment
of cattle contains the words " at his request." This rule must^ therefore,
be made absolute.
Williams, J. — As to the form of this affidavit I must give effect to the
rule of Court, H. T. 2 fK. 4, s. 8 ; although this is not one of the cases
specified in the rule, as I cannot distinguish the case of the agistment of
cattle from that of work and labour. As work and labour may be done
without the request of the party sought to be made liable for it, so cattle
may be agisted without a party's request. It appears to me, that the state-
ment of the request to do the thing which is the foundation of the debt, is
necessary. I observe that the form given in Tidd^ for the affidavit in this
ease is in that form, and I h&ve no compassion for t)arties who choose to
disregard the forms given.
Rule absolute.
(«) 1 Dowl. P.C. 183. (f) 1 Biiig. 338 ; 8 Moore, 332. See
\h) 5 Maule & Sel. 446; also Aeerei v. Mucker, 2 Cromp. & Jerv. 44 ;
e) 8 Barn. & Cress. 654; 3 MaoDi & 2 Tyr. 161 ; aod Martkat v. Davutm, 2 Tyn
129. 315.
(d) 5 Taant. 704, and 1 Marsh. 315. (g) 1 Gale, 301 ; 4 DowL P. C. 382 ; ^
(e) 5 Taunt. 766. Cromp. Mees. & Ros. 736«
&yl
90 TERM REPORTS m m KING'S BENCH.
Bail Court,
Ward v. Turner.
tory^^dlrtSanr TT^^^ ^'^ * "^^ ^ ^^^^ ^"®® ^^^ ^^ '"^® ^^'^ Judgmciit 88 in case of a
to try at • parti- nonsuit, after a peremptory undertaking to try at the last Sammer As*
catue H^mada a^ sizes, should not be Set aside. The plaintiff not haring proceeded to trial
nmmtt, on MC' at the Spring Assizes, 1835, a rule was obtained in Trhdhf Term to show
den illness of a cause why the defendant should not have judgment as in case of a nonsuit.
'^t^^ dff d^ ^^^ ^" showing cause the rule was discharged, on the plaintiff ginng a peremp-
appiy for the en- tory Undertaking to try at the following Summer Assizes. The plaintiff ttxik
largementof his ),jg cauRC dowu for trial sccordinff to his undertakinff, but owinr to the
peremptory on- . ° ®% ®
deruking, the dc- suddcu illuess of Mr. Justicc VaughaUf the cause was made a renuinet. The
tiuedto hid^eot P^^>"^^ ^^^ i^^ Apply ^^' ^ enlargement of his peremptory undertakii^
as incase of H and at the last Sprii^ Assi^es he withdrew the record. In this term the
nonsuit. defendant had a rule for judgment as in case of a nonsuit, drawn up on randing
the rule made in Triniiy Term last. This was a rule to show cAoBe why
that rule for judgment as in case of a nonsuit should not be set aside.
Whitehurstf showed cause. — The first rule for judgment as in case of a
nonsuit having been discharged on a peremptory undertaking to try the
cause at the last Summer Assizes, the plaintiff was bound at all events to
try the cause then. It is no excuse that he was prevented performing his
undertaking by an event over which he had no control. Had the plaintiff
made application in Michaelmas Term to enlarge his peremptory undertakings
the Court might perhaps have listened to him ; but he did not do so either then
or in Hilary Term, and at the subsequent assizes withdrew the record. The
case of Gilbert v. Kirkland (a), where it was held, that the defendailt could
not have judgment as in case of a nonsuit, when a cause has been made a
remanet, does not apply to this case, as in that case there was no peremptory
undertaking to try the cause at a particular time. The defendant b also
entitled to judgment as in case of a nonsuit, as the plaintiff, by withdrawing
the record at the last Spring Assizes, has made a second default The case
of Dyke V. Edwards (5), though not exactly like the present, is an authority
to show that this defendant is entitled to the rule for judgment as in case of
a nonsuit, as for a second default.
G, Ti ff^kitef contrh, — The case of Gilbert v. Kirkland is an express
authority to show, that where a cause has been made a remanet the defendant
is not entitled to judgment as in case of a nonsuit. It is true that in that case
there had not been a peremptory undertaking given to try the cause, but
what difference can that make ? — [Coleridge^ J. — ^There is this differenoey
that here the plaintiff was in default before he gave the pcfremptory mider-
taking, and he only got leave to be allowed to try the castise on a cteftsBn
condition, which he has not performed.] — The unforeseen illness of the
judge, which is a cireumstanee over which the plaintiff had no postilite eeli-
trol, was sufficient excuse for the plaintiff not performing his undertaking.
This is not like the case of a bond conditioned to perform a certain act.
(a) 2 Dowl. F. C. 163. , (6) 2 Dowl P. C. 63.
EASTER TERM, 1836. 91
The rule of Trinity Term last was discharged in this form, — " Upon the Bail Court,
undertaking of the plaintiff to bring on the cause to be tried at the next ^^v^
assizes/' — so that the plaintiff in fact has performed his undertaking, as it is Ward.
dear on the affidavits that he was ready to try at the Summer Assizes. Turnsr.
The rule for judgment as in case of a nonsuit obtained this time^ having be^i
obtained ** on reading the rule made in Triniiy Term last/' the defendant
aymot now rely on any default made at the last assizes.
CoLBRiDGE, J. — I think that when the facts of this case are examined, it
wiD be seen that the case of Gilbert v. Kirkland has nothing to do with it.
In order to see if it has, let us see the circumstances under which a rule for
judgment as in case of a nonsuit may be obtained. That is a rule given
by the statute 14 Geo, 2, c. 17« when the plaintiff neglects to carry his cause
down for trial according to the practice of the Courts. Now, in an early
cue (a) it was held, that when once the plaintiff had taken the cause down
for trial the defendant was not entitled to judgment as in case of a nonsuit
for a second de&ult, but must resort to his remedy by carrying the cause
down by proviso. The case of Gilbert v. Kirkland decides no more than
this, that where the plaintiff has once taken down his cause for trial, it does
not signify whether he afterwards is passive and takes no step in the cause,
or whether he gives notice of trial and abandons it ; and that the defendant
in neither case is entitled to move for judgment as in case of a nonsuit^ on the
ground that the plaintiff has once taken down the cause for trial, according
to the course and practice of the Courts, and that therefore the statutable
mode of proceeding is taken away. Here the plaintiff had failed to take the
cause down for trial, and had been in default^ and the defendant consequently
had a right to his remedy under the statute, and had a rule nisi accordingly.
That rule was discharged, not because it was improperly pbtained, but on
condition of the plaintiff undertaking to try the action at the next assizes;
10 that the facts of this case and those of Gilbert v. Kirkland are different.
Then comes the question, whether there was any fault on the part of the
plaintiff at the next assizes. In one sense there was none, as there was no
moral fault, and no neglect on his part ; but, in the sense of a condition, it
was a peremptory undertaking to be responsible even tliough he had no con-
trol over the circumstances which prevented the trial. The plaintiff should
have applied in Michaelmas Term to enlarge his peremptory undertaking,
when that would have been done, no doubt^ as the Court would have looked
into all the facts of the case. The only use of the subsequent default is to
aee how far the plaintiff may be excused, and whether he is entitled to an
extension of time ; but, looking at the circumstances of the case, it goes to
take away the right to any such an indulgence. I think, therefore, the case
aiGUBert ▼• Kirkland does not apply, and that it was not an irregularity
be dbe defendant to sign judgment as in case of a nonsuit, two terms afler ;
and as die heU of the case at present appear before the Court, I do not see
tbat the plaintiff is entitled to further time to try the cause.
Rule discharged.
(a) King r. Pippeit, I Tenn Rep. 492.
92 TERM REPORTS in the KING'S BENCH.
Bail Court,
Hedges v. Jordan.
If •plaintiff col- T^HIS was a rule to show cause why a rule directed to the sheriff of fFill'
d"?*^*^* ^^d *^*^^ ^ return a writ of ca. sa. should not be discharged, or why he
setuet the ac- should not have time given him to make his return. After the ca. sa, issued,
d°"rit«W8*«t- ^^® plaintiff, without the knowledge of her own attorney, made a compromise
torory of hb right with the defendant, and accepted part of the debt due. After the com-
JJ^J^JjJ^^/"" promise was made, the plaintiff wrote to the sheriff in the following terms: —
costs dae to him, *< Hedges V. Jordan, I, the above named-plaintiff, have arranged and settled
TOt gow!*id*" ^^® action with the defendant, and I hereby require and caution you not to
compel the execute any warrant or other proceeding whatsoever against the above-named
writofM. «c. defendant in this action. Sarah Hedges,** The plaintiff's attorney, not
having had his costs paid him, next wrote to the sheriff to say that the action
was not settled, and that he would indemnify him if he proceeded to execute
the writ on the defendant. The attorney then ruled the sheriff to return the
ca. sa,f whereupon the sheriff obtained the present rule.
Byles, on the part of the plaintiff's attorney, showed cause. — This is a
collusion between the plaintiff and the defendant's attorney, in order to
deprive the plaintiff's attorney of his costs, as he would have been entitled
to retain the whole of the sum recovered from the defendant for a debt due
to him from the plaintiff herself. In the case of Gould v. Davis (a), the
Court ordered a security taken by a party for his debt and costs, behind the
back of his attorney, to be put into the hands of his attorney. That case is
recognized in the subsequent case of Young v. Redhead (6). Those cases
show that a settlement with the defendant, without the knowledge of the
plaintiff's attorney, is not good. Alchin v. fVells (c) will be relied on by
the other side ; that case, however, does not apply, as it does not appear
from the report but that that action was regularly settled between the at-
tomies. The Court will not countenance this unfair compromise.
BarstoWf con<f<).*— The cases of Gould v. Davis, and Young v. Redhead^
would be applicable if other parties were before the Court, but do not apply
in this case. Here it is the sheriff who seeks the interference of tlie Court
to relieve him from the difficulty in which he is placed by the contention
that has arisen between the plaintiff and her attorney. If the plaintiff's
attorney has been defrauded, his remedy is by application to the Court,
either against his own client, or against the defendant in the cause. It is
not the sheriff who is to suffer for what he is no party to. The case of
Alchin v. Wells is an undoubted authority to show, that if a compromise has
been effected, neither party shall be allowed to rule the sheriff to return the
writ. The case of The King v. The Sheriff of London ((/), is also an autho-^
rity for making this rule absolute.
Williams, J. — It does not appear in the report of the case of Alchin Vi
Wells iti what manner the settlement was made, but there is nothing to show
(«) 1 Tyn 382i ^ (c) 6 Term Rep. 470.
(fr) 2 DowL P. Ci ll9. (d) 1 Chit. 613.
Hkdqes
V,
EASTER TERM, 1836. 93
that there vvas the intervention of any third party. The report states that Bail Court,
the plaintiff and defendant compromised before the sheriff sold any of the
defendant's goods. Now here the question is as to an underhand settlement
made by the plaintiff with the opposite party independent of her attorney. Jobdan.
It is certain, that if this were a matter between the party and his attorney,
the Court would not countenance this collusion ; but the sheriff has nothing
to do with it, and he is not to be affected by the quarrels there may be
between the attorney and his client. There was a formal notice by the
plaintiff not to execute the ca. sa,, and if the sheriff afterwards executes it,
it is at his own peril. I do not myself see how suing out a ca. sa. will assist
the attorney to recover his costs ; that, however, is a contingent speculation,
with which the sheriff has nothing to do. Therefore, on the reason of the
case, and on the authority of Alchin v. Welis, as far as that case is reported,
this role to discharge the rule to the sheriff to return the writ must be made
absolute.
Rule absolute.
Smith v. Preston.
^HIS was a rule to show cause why the defendant should not be dis- introrcrfora
charged under the Small Debts Act, 48 Geo. 3, c. US. ITie action was wJgiverfit'M..
trover for a barge ; a verdict was returned for the plaintiff, damages 90/., piuntiffwUh go/.
but Lord Denman^ before whom the cause was tried, suggested that the «^ reduced by
damages should be entered for 40«., and the barge be returned. Judgment ^o'^'f <*^ i<> *
was accordingly so entered, and the barge, afler some delay, was returned. 4o«., for which
The defendant was afterwards taken in execution for the nominal damacres J™*'«"**'** ^"^
^ enteriHl. and the
and costs. Iwrge was re-
turned x—BtU,
that the defend-
i^rfe showed cause in the first instance. — The act under which the de- ant was entiued
fieodant seeks to be discharged, is an act for the discharge of debtors in exe- irnder^thTsoM^
cution for small debts. Now although this defendant is only in execution ^^^ ^^^
finr the 40f. nominal damages and the costs, yet the original debt being in
&et 90/., the verdict having been for that sum, he is not entitled to the relief
he now seeks.
Peleridorffi contrh. — The only question is, for what is the defendant in
execution. The Act says, that all persons in execution for any debt or
damages not exceeding 20/., exclusive of costs, shall be entitled to the relief
now sought for. This defendant being in execution for the 40s. only and
the costs, is therefore entitled to have this rule made absolute.
Williams, J. — I must take the whole act together as explanatory of
itself, though no doubt the title of it is " An Act for the discharge of debtors
in execution for small debts.** There is no doubt very great authority to
ihow that in the construction of an act of parliament the title must not be
neglected, but there is also no doubt but that both the title and preamble of
in act may be exceeded by the act itself. When I come to look at this act,
the word " debt," and the word <' damages," both occur. The act itself,
therefore, recognizes the 201. as applicable to both debt and damages, and
94
TERM REPORTS iv thb KING'S BENCH.
Att^ Ow««t.
comeqiieiitly showi wbat must be looked to, and makes it clear for what a
party most have been detained a year in custody. In this case, therefore,
I am to look to the amount for which the defendant was in custody ; and
whatever the case may have been originally, that amount at present is not
larger than will entitle the defendant to be discharged.
Rule absolute.
KiRKE V. Dark.
^HIS was a rule to show cause why a cognovit should not be set aside.
The defendant, when he signed it, was in custody under mesne process,
and the attestation to his signature was " Daniel ChUterbuck, attorney for
the above-named defendant." It was objected, that this attestation did not
comply with the Rule of Court H. T. 2 IF. 4, 72 (a), as it did not sUte that
the attorney subscribed as such attorney. Several other objections were
averred, which it is unnecessary to notice.
Busby showed cause, and referred to BUgh v. Brewer (5).
BarstorVf contrd,
CoLERipoE, J. — I shall dispose of this rule on the point of the attestation.
I should be disposed, perhaps, to think the attestation was sufficient, unless
I looked at the Rule of Court, which says that the '' attorney shall subscribe
his name as a witness to the due execution thereof, and declare himself to
be attorney for the defendant, and state that he subscribes as such attorney.**
I must suppose that something must have been intended by this third con-
dition of the rule, and as this attestation does not state that the witness did
the act as the attorney of the defendant, I think the Rule of Court has not
been complied with, and therefore this rule must be made absolute.
(o) 1 Dowl. P. C. 192.
Rule absolute.
(6) 1 Cr. Mees. & Robc. 651.
It li no excuse
fur not making a
motloD to act
aside a decla-
ration for irre-
gularity within
fbur days, ttiat
the delay was
owing to the
defendant's at-
torney having
been changed.
GoLDiNG V. Scarborough.
^HIS was a rule to set aside a declaration for irregularity, the capias
having been in an action on promises, and the declaration in debt.
JV. H. fTatson, on showing cause, took a preliminary objection, that the
motion was made too late. The declaration was delivered on the 26th
^prily and the rule was not moved for until the Sd of May, whereas it ought
to have been made within four days (c).
Richmond^ cmtrdt said that the delay had occurred by the defendant having
been obliged to have his attorney changed.
Williams, J. — ^The application was made too late.
Rule discharged.
(c) See the cases of Hinton v. Stevent, 1 Chubb v. NichoUon, I Har. & Wol. 666.
Htr. & Wol. 531 i 4 Dowl. P. C. 283, and
CASES
ARGUED ANP DETERMINED
m THB
COURT OF KING'S BENCH,
nr
Trinity Term, 1836.
King*t Bench.
The King v. The Churchwardens and Overseers of
WiSTOW,
fJPON appeal made by George Mmgage, the rector of the parish of wber« an lucio.
WiiUm, in the county of Hmtuigdon, against the poor rate of the said JSIJa^^*^?
pirith, wherein he was rated &r his *' com rents, or composition for tithes," **>^i ^ awarded
the Sessions quashed the rate, subject to the opinion of this Court on the He^of'tithwlMd
feUowing easet — ^Previous to the year 1880, the rector of the parish of ^^^ <>* "**^^
Wiaiam was entitled, in right of his said rectory, to the tithes of com, grain, « uirtuuM^of aii
hay, and all the other great and small tithes arising within that parish ; but •i^^B^^d ^^
oa the 3d day of ilfey in that year, an Act of Parliament was passed for be uke^as ^aai
iadosiiig the laid parish, and for extinguishing the tithes in the said parish, ^ft^*!^^/"^^
nUeb ia to be considered as forming part of this case. The 25th section of net value of the
Ait Ant ia in the words foUowing :— •« The said Commissioner (meaning the JJ^tl^a hdfto
CeBmriaaioner of Inclosure, by the act appointed) shall, and he is hereby be rateable in re-
liqmfed, within tweW e months next after the passing of this act, to ascertain ^ ^Iw Jdi^to
sad ^h^mn^^h the yearly value of all the tithes, and of all moduses, com* bin.
foMoWt and other payments (if any) in lieu of tithes, which shall be arising, the legtoucan ^
maing, or renewing put of and from any of the said lands and grounds in tbttssp<»ii>of
the said parish of Wieiomt hereby directed to be divided, allotted, and in* niiy, andtii^ oT
desed, and cot of and from all and every the gardens, orchards, and other ^^ " °^^ ^^^ ^^
ancient and inclosed lands and ground, in the said parish of Wutcfw^ and due the equivalent
sad paydde to the said rector, and in making such valuation, the tithes of ^ ^^J^l^^^
mean that one-
iMi of the nft aaooal nine of the land \$ equal to the groM value of the tithea, and the rector it liable to
to rated ibr the payneat mbetttated, •• he originally wii for the ttlbet thenaelvet.
9,
TWCIkWC^
W
le TERM REPORTS in the KING'S BENCH.
Ei^'s BIm^L ^ s^kIi lands and grounds hereby directed to be divided, allotted, and
N^^^^ inclosed, and of all the ancient and inclosed lands and grounds (except the
nt Kims indoted fen lands and grounds) as shall be arable^ shall be deemed equal in
Tslne to one-fifUi part of the annual net value of the said lands and grounds,
and the tithes of all such inclosed fen lands and grounds, shall be deemed
equal in value to one-seventh part of the annual net value of such inclosed
fen lands and grounds, and the tithes of all other lands and grounds
in the said parish, shall be deemed equal in value to one-eighth part
of tlie annual net value of all such other lands and grounds, afler de-
ducting the lands or grounds set out for roads, and the allotments here-
inbeliwe directed to be set out for the purposes of getting stone, chalk,
gravel, and other materials ; and the said Commissioner shall, and he is
hereby required, in the next place, by and from the London Gazette^ or by
such other ways and means as he shfdl think proper, to ascertain what has
been the average price of a bushel (imperial measure) of good marketable
wheat in the county of Huntingdon^ for the period of seven years next
before the passing of this act, and shall, in and by his award, or some pre-
vious writing under his hand to be annexed thereto, ascertain and distinctly
set forth what quantity, and how many bushels of such wheat, will, in his
judgpnent, be equal to the annual value of the said tithes ; and after such
valuation and ascertainments, the said Commissioner shall, and he is hereby
required to determine what sum of money shall be equivalent to the value of
the quantity of wheat so ascertained by him as aforesaid ; and such sum of
money shall be charged and appointed by the said Commissioner upon such
lands and tenements of each and every proprietor, and in such manner as
the said Commissioner shall think just and equitable ; and such sum of money,
when so apportioned and charged, shall be issuing out of the lands and tene-
ments which shall be charged therewith by the said Commissioner, and shall
be paid and payable by the person or persons who, for the time being, shall
be in the occupation of such lands and tenements, to the said rector and his
successors for ever (unless the same shall be altered by the ways and means
hereina&er mentioned and provided), by four equal quarterly payments, (that
is to say, on the 25tli day of March, the 24th day of June, the 29th day of
September, and the 25th of December,) in each and every year; the first pay-
ment whereof shall be made on the 25th day of March next afler the execu-
tion of the said award, or such earlier quarterly day of payment as the said
Commissioner shall by such award, or by such previous writing under his
hand as aforesaid direct or appoint ; and the said rate hereinafter made pay-
able shall be, and is hereby declared to be in lieu and full satisfaction and
discharge of all and all manner of tithes, both great and small, rooduses,
compositions, and other payments in lieu thereof, arising, growing, issuing
out of, and payable in respect of all the homesteads, gardens, orchards, open
and common fields, meadows, pastures, commonable lands, and waste
grounds, ancient inclosed lands and grounds, and all other lands, tenements,
and hereditaments whatsoever in the said parish of Wistow (except Easter
offerings, surplice fees, and mortuaries) ; and from and afler the apportion-
ment of the said rent, as hereinbefore provided, or at such other time as the
said Commissioner, by any writing under his hand, shall fix and appoint, and
all and all manner of tithes and former moduses, compositions, and other pay-
mentst (if any), in lieu of tithes within the said parish of Wistow, shall cease.
TRINITY TERM, 1836.
97
Oveneera of
W18TOW.
det6nnine» and be for ever extinguithed ; but, in the meantime the said rector £1,1^*1 Bench.
and his successors respectively, shall be entitled to such tithes as he or they ^^^^/^
would have been entitled to if this act had not been passed." The Commis- The Kino
sioner, under the authority of this section, by writing under his hand and ji^^ Church-
leal, bearing date 3d of October, 1832, ascertained and set forth the quantity wardens tod
of wheat, in his judgment, equal to the annual value of the said tithes (the
quantity being estimated according to the same section), and determined the
turn of money equal to the quantity of such wheat, and thereby charged and
apportioned such sum of money upon the lands and tenements of each and
every proprietor, in the proportions set forth in the schedule to such writing.
And the said Commissioner, by such writing, directed and appointed such
quarterly payment of such sums of money or rent, to be made on the 25th
day of December then next, and fixed and appointed that all and all manner
of tithes, and all former moduses, compositions, and other payments (if any),
in lieu of tithes, within the said parish, had ceased and determined, and were
for ever extinguished, as and from the 29th day of September then last past.
The Commissioner's general award was signed on the 17th day of January^
1833, the previous writing of the 3d day of October, 1832, being annexed
thereto, and they are now both inrolled with the clerk of the peace in the
county of Huntingdon^ pursuant to the directions of the said Inclosure Act.
The rector of the parish, the present appellant, has ever since been, and is
now, in receipt of the amount of the said com rent, in lieu of his former
com rents. The question for the opinion of the Court is, whether the rector
was liable to be rated in respect of such corn rents ? If the Court should
be of opmion that he is rateable, then the judgment of the Court of Quarter
Sessions is to be quashed, otherwise to be confirmed.
Tlie Attorney-General and Mr. Gunning, in support of the order of Ses-
sions.— The rector is not liable to be rated in respect of these corn rents.
Since the cases of Lowndes v. Home (a), and Rex v. Boidero (6), it must be
admitted that a com rent, or other payment awarded to a rector in lieu of
tithes, is in general rateable ; but the corn rent is not rateable in this case,
from the introduction of the word *' net '* into the act, which constitutes a
statutable exemption. The titlies are to be calculated as equal to one-fiflh
of the annual net value of the ancient and inclosed lands, and so on of the
rest. What is the meaning of this expression, " net value of the lands ?*'
Why clearly this ; that the com rent allotted to the rector shall be equal to
one-fifUi of the annual value of these lands, afler deducting (inter alia) the
amount that they ought to pay for the poor-rates. A different holding
would make the rector pay rates twice over ; for the value would be ascer-
tained, and the sum to be paid to him in lieu of the tithes declared, after
making a deduction for the rates, and those rates would be called for from
him upon a com rent calculated upon this reduced valuation. It is the same
here as if the act had directed that the sum to be paid to the rector, as a
com rent, should be " free and clear of all rates, taxes, and deductions
whatsoever," or " free from all taxes and deductions whatsoever," in which
case it is clear that the rector would not be rateable, Chatjield v. Ruston (c),
and Mitchdl v. Fordham {d). The expression, net annual value, must be
(a) 2 Sir W. Bl. 1252.
(6)4-
Bam« tt Crest. 467.
(c) 3 BacD. & Cress. 863.
(d) 6 Bam. 6c Cross. 271.
VOL. n.
H
\
96
TERM REPORTS ik the KING'S BENCH.
The Kino
V.
The Church-
wardens and
Ofeneeraof
WiSTOW*
Klng't Bench, interpreted here, as it would be with regard to land which was the subject
of purchase and sale between two private individuals. It is clear that with
them it would mean the value, afler deducting all rates and charges. In
Rex V. NockoIdSf this very Act of Parliament came under the consideration
of the Court upon another point, and Mr. Justice Patteson there intimated
an opinion upon the point now in dispute, in favour of the rector. His
lordship said {a) that the rector " wished to have it more clearly ascer-.
tained by the award, that the mode of valuing exempted his com rent from
the poor's-rate," and added, '' I do not know that the result of the valuation
may not be such in point of law." The mode of calculating the an-
nual value must be taken according to the rule stated in Rex v. Lower
Miiton (6), " The Sessions must rate the corn according to the annual profit
or value which the subject of occupation within the parish produces. This
in general would be properly estimated at the rent which a tenant would
give, he paying the poor-rates, and the expenses of repairs, and the other
annual expenses necessary for making the subject of occupation pro-
ductive." In Rex V. The Hull Dock Company (c), it was decided, that, in
calculating the rateable value of the land, a deduction ought to have been
made for the sum the company was liable to pay for the poor-rate. The
value of the land here assigned to the rector, must be presumed to have
been made upon such a calculation, and the present case is stronger than
that, for here the word ** net " has been used by the legislature, whereas
there the terms used were simply, " worth and vdue."
Sir W. Follettf contrh. — Where tithes are extinguished by an act of this
kind, and corn rents are given in lieu of them, they are, unless expressly
exempted, liable to be rated. The fallacy of the argument on the other side
consists in this, that it assumes that the net annual value of the tithe has
been taken, whereas the full value of the tithe has been taken, and the net
value of the land allotted in lieu of it. To exempt that allotment from the
payment of rates woidd, therefore, be most unjust. He was stopped by the
Court.
Lord Denman, C. J. — It appears to me that the argument of Sir Wm,
Follett is well founded. Although every thing may depend upon the word
" net," as used in the Act of Parliament, it does not at all follow, because
the net value of the lands is to be ascertained, that the com rents are there-
fore to be taken to be of the net value of the tithes. I do not know that the
act would have given so large a portion as one-fifth of the net annual value
of the lands, if that was to be considered as free from deduction. That
point may be open to argument, but I own it appears to me desirable to
decide this on a broader ground, and one which will prevent all controversies
on these minor points, and that is, on the ground on which the decision in
The King v. Boldero proceeded — namely, that " where, under an Inclosure
Act, a sum of money is given to the rector in lieu of tithes which were
rateable, that money will also be rateable, unless the liability is taken away
by express words in the statute. The money payment is liable to the same
burdens as the tithes for which it was substituted." This gets rid of all
(a) 1 Ad. & £11. 269. (6) 9 Btrn. & Cress. 819. (c) 3 Bam. & Cress. 516.
TRINITY TERM, 1836.
99
The King
The Church,
wardens and
Overseers of
WiSTOW.
diflfeolty, and all the authorities proceed upon this principle, and fully bear King's Bench
as out in coming to such a decision.
LiTTLEDALE, J. concurrcd.
Patteson, J. — The cases of Mitchell v, Fordham, and Chatfield v. Rustony
dqiended chiefly on the question whether '* rates " and '* taxes,'* from which
the corn rents were expressly exempted by the statute, included the poor-rate.
On the present point this Court, in The King v. Boldero, decided that unless
there is an express exemption by the Act of Parliament, corn rents given in
lieu of tithes are rateable. That is a broad and intelligible ground of
deciaion, and it is very desirable that we should adhere to it, and say that
nnless there is a clause of exemption, the thing given in lieu of tithes must
be rated. But it is said, that there is here a clause of exemption, by reason
of the introduction of the word " net.'* On that point I must observe, that
OD reference to the statute, the word " net" will be found placed in conjunc-
tion with the annual value of the land — it is omitted in the part of the
sentence which speaks of tithes. The legislature meant to say, that one-fiflh
of the net annual value of the land is equal to the gross value of the tithes.
If the rector receives that gross value, he must be rated upon it. So he
most on receiving what the legislature has deemed equivalent to it.
Williams, J. — This question arises on the arbitrary mode of ascertaining
ihe value of tithes. Instead of ascertaining what the composition for the
tithes is annually, the Commissioner is to ascertain what is the yearly value
of the tithes, with regard to a certain proportion of the net annual value of
the hmds, and a certain portion of that net annual value is to be deemed the
value of the tithes. Whatever deduction was to be made in ascertaining
tbe value of the land, does not appear to me to affect the question, as to
whether the rector is to have his corn rent free from the poor-rate, and
unless there is something in the statute to show that it is to be exempt
from rateability, there are so many decisions that the composition in lieu of
tidies is rateable in the same manner as the tithes for which it is granted
were originally rateable, that I think there can be no doubt that the rector
in this case ought to have been rated.
Order of Sessions quashed.
Ex parte Handcock.
GIR JV* FOLLETT moved that the applicant might be admitted as an The Court wui
attorney, without a term's notice. The applicant had served his time cirramJun^***^
wgnlmrlyy and some time after Hilary Term last he received an offer to be dispense with a
tdcen out to Bombay to practise there. He then took all the necessary steps the^'Tonhe'
lor his admission to the Courts here. There was no opposition to his appli- »inission of an
tttion. At that time it was supposed that he need not sail till Trinity Term,
but the vessel in which he was going out was now unexpectedly ordered to
go oat immediatelyf and unless he could be admitted before the last day of
n2
100 TERM REPORTS in the KING'S BENCH.
K'mgU Bench, the present term, he must lose his passage. In Ex parte Hulme (a)» an
^"^^^^ application similar to this had been granted. Notice of the application bad
ifANwS!?!. ^®^° 8'^^" ^^ ^^® ^^^ Society.
Per Curiam, — Under the circumstances stated, the applicant may be
admitted on the last day of this term.
Application granted.
(a) 1 Har. & Wol. 366 ; 4 Dowl. P. C. 88.
Rex v. Great and Little Usworth and North Biddick.
Where a build- TJPON an appeal against an order, by which Caroline^ the wife of William
oiie*w)f three***' Waddelly surgeon, who had deserted her and her seven children, were
floors, each eu- rcmoved from the township of Great and Little Usworth and North BidtUck,
mte^outordoor, ^^ *^>c county of Durham, to the township of Houghton-le- Spring, in the
though oue of the game county, the Sessions quashed the order, subject to the opinion of this
^ddlie^'floor can- Court on the following case : — It was admitted at the trial of this appeal,
not be entered ^jj^t William Waddell, the husband and fatlier of the paupers, had gained a
aiong^or acron a Settlement in the appellant township ; and it was also admitted, that he had
pauage belonging subsequently rented, paid the rent for, and occupied for a sufficient time, a
floor, the occn- tenement of sufficient value to confer a settlement in the township of Pain-
mS^du fl<^ fains *^^* ^" ^^ ^^^ county, in the years 1829 and 1830, and the only question
a setUement by in dispute was, whether the tenement in Painshaw was or was not a separate
(OftJ!7c!*ffn^ and distinct dwelling-house or building within the meaning of 6 Geo, 4,
c. 57* The tenement in question was part of an entire house, which con-
sisted of three floors, viz. the ground floor, the middle floor, and the upper
floor. The three floors were rented of the owner by three separate and
distinct tenants. William Waddell rented and occupied the middle floor.
The entrance to the ground floor was by a door in front, which was for the
separate and exclusive use of the occupier of the ground-floor. There was
no internal communication between that floor and any other part of the
house. The entrance to the middle floor was by a flight of steps on the
outside in front. The ground behind was elevated, so as to be on a level
with the middle floor, and there was a back door behind entering into the
middle floor. Both these entrances were for the separate and exclusive use
of Waddell, the occupier of that floor. Another flight of outer steps in
front led to a passage on the middle floor, which terminated in a staircase,
and this flight of steps, passage, and staircase, formed the entrance to the
upper floor. By means of internal communication, Waddell could pass from
his front to his back door, and from one room to another, into all the rooms
of his middle floor, except one very small room. Waddell had a locked
door leading into the above-mentioned passage, immediately opposite the
room in question, so that he could get to that room by merely crossing the
passage which led to the upper floor, but he had the right of using the outer
steps, and the whole of that passage, to enable him to get access to it, if he
thought proper ; but without using the passage in one or other of these
ways, he could not get access to that room. One roof covered the whole of
the three floors. The Sessions decided that WaddelTs floor was a separate
TRINITY TERM, 1836.
101
and distinct dwelling-house within the meaning of the act. The question KingU Beiidk.
for the opinion of the Court was, whether the Sessions came to a right
determination on that point.
R. v. Richards f in support of the order of Sessions, was stopped.
Cresswell and Ingham, contrd, — This is not a separate and distinct build-
ing within the meaning of the statute. The cases of Rex v. Rochester (a),
and Rex v. SL Nicholas, ColcJiester (b), though they do not decide the
present, are important as guiding the Court to the principle on which its
decision must proceed. The building must be a distinct and separate
building. The mere fact that one apartment within the same building is
separated from another, will not constitute an occupation sufficient to confer
a settlement, otherwise the tenants of houses, who let out parts of them to
lodgers, would come within the act, which it is clear they do not. In
common parlance, the persons renting these different flats would be said to
be renting different parts of the same building. Now the act requires that
the renting shall be that of a distinct and separate building. The fact that
an indictment for burglary might lie with respect to the rooms occupied by
Waddellj does not decide the question here. fVaddeWs apartments might be
sufficiently his for the purpose of maintaining such an indictment, and yet
not sufiSdendy so for the purpose of his gaining a settlement. If the room
occupied by Waddell, and thus separated from the rest, was necessary to
make up the value of the other renting to the amount required by the
statute, then it is clear that there has been no sufficient renting. To hold
that each of these flats, all being under the same roof, is a separate and
distinct dwelling-house within the meaning of the act, will be to give a con-
stmction to it subversive of the intention of the legislature.
Lord Dekman, C. J. — I profess to follow the statute as closely as pos-
sible, and that I do so in saying that this is a distinct dwelling-house. I do
not think it necessary to say more*
LiTTLEDALE, J. — I also am of opinion that this is a distinct dwelling-
house. Each part of the building has a separate outer door. The only
thing is, that in this dwelling-house there is one of the rooms which coidd
not be got at by Waddeli, but by opening a door which led over a passage
belonging to another person, or by passing through that passage which had
been built for the use of that other person who lived on the upper floor.
Thaf cannot, however, be ccmsidered as aflecting the question, for the party
had a right of way over or along that passage. The three outer doors here
make the flats like those at Edinburgh^ which are clearly distinct houses.
Pattxson, J. —I thought that there had been some decision on the sub-
ject. The nearest is that of Rex v. Wootton (c), but that turns on the par-
ticular words of the statute, " actually occupied by the person hiring the
same." The point there was, whether a man might gain a settlement by
inhabiting one house of less than the required value, being also tenant of
The Kino
V.
Obbat and
Little
UswoBTB and
North
BlDOId*
W6
Wl
5 Bun. 6l Ad. 219.
fiarr. & WoU. 47; 2 Ad. & £11.599.
(c) 1 Ad. & £11.232,
The Kino
102 TERM REPORTS in the KING'S BENCH.
King'i Bench, another, also of less than the required value in the same parish, but which
he had let to another persou. Rex v. Iver (a) also bears upon the point
In that case the different members of the Court, in the course of the argu-
Great and ment, expressed an opinion that separate and distinct meant separate and
Ufwo^H* d ^'^'^"^' ^^^^ ^^^^ persons,— that it meant holding the whole of the house.
NoBTH ^^ ^^^^ present case each floor is a house in itself.
WiLLUMS, J. concurred.
(a) 1 Ad. & £U. 228 ; 3 Nev. & Man. 28.
Hills v. Thorowgood.
Where a drawer jJSSUMPSlT^ against the drawer of a bill of exchange for 351 The
changfuoneof ^'^^ "^^^ acccptcd by three persons then carrying on business as
the partners of a partners. The defendant was one of these partners. The defendant
u^l^'Xc pleaded, first, that he did not make the note; secondly, that it was
notke which any not duly presented ; and thirdly, that he had not due notice of the pre-
oeraofthat^ sentment. At the trial of the cause before Coleridge^ J. at the sittings in the
reroivet of iu present term, the learned judge told the jury, that as the drawer of the bill
notice sufficient was onc of the acccptors, the knowledge which the acceptors had of the non-
nw^ho^^tT^ payment of the bill, being the knowledge of three partners, of whom he was
drawer. one, was Sufficient to bind him as drawer, and that notice to one partner was
uurl::::^ »«>"«:« »<> »»• verdict for the plaintiff.
to prove that the
In^ii^ifelttiie Humfrey now moved to set aside the verdict, and have a new trial, on the
time the bill ground of misdirection. — Poriliouse v. Parker and others (6), might appear to
came ue. j^^^^ ^^^ ^^^ general proposition of the learned judge, but there the defence
was not specially pleaded. Here it was specially pleaded, and tlie plaintiff
had taken issue on it, and was therefore bound to reply the facts which made
a notice unnecessary. — [Patieson. J. — There used to be an averment in all
declarations on bills of exchange against the acceptor, before the new rules,
that the defendant had notice, and that averment was always held to be
proved by showing that the bill had been presented, and that the answer
was, no effects. It never was requisite to state in the declaration, as an
excuse for not proving notice, that the party had no effects.]
Per Curiam. Rule refused^
Hwnfrey then moved, on another ground, that there was no evidence given
that the partnership was in existence at the time the biU became due* This
objection was taken at the trial, but the learned judge ruled that the plain-
tiff need not show the partnership to be in existence, but that the defendant
must show it to have been dissolved. This ruling was clearly erroneous, for
the foundation of the first defence was, that the notice to one partner was a
notice to all ; and to support that defence, it was absolutely necessary to
show, that at the time when the bill became due^ the partnership was in
existence.
(b) lCvDpb.82«
TRINITY TERM, 1836. 103
Lord Dekman, C. J. — How could the plaintiff show that ? The disso- King*t Bench.
latkm of the partnership might be shown, but not the fact of its continued v^v^
existence. Hills
Patteson, J. — This bill was a partnership transaction. The dissolution
might alter the rights of the partners towards each other on the bill, but
still the bill would remain due from them all, notwithstanding the notice in
the Gazette. The judgment of Mr. Justice Heath, in Wood v. Braddick (a),
is express on this point.
Per Curiam* Rule refused.
(«) 1 Tavut. 104.
Sabourin V. Neale.
T^RESPASS for taking divers goods and chattels of the plaintiflTs by the wkere a collector
defendant. The defendant pleaded that the alleged trespasses were done ^ ^« Commia-
Boncn Of Sowers
by him, by the authority of a certain Commission of Sewers for the Tower receives from
Hamlets, under the Great Seal of Great Britain, bearing date at Westminster ^^^^l^
the 4th December, 1830^ directed to certain commissioners therein named, for distnin and after-
a rate or tax assessed by the said commissioners, according to the tenor and ^^^^^^^he
efiect of a certain act of parliament made in the 23d year of the reign of cannot, if he dis-
King Henry the 8th, entitled, "The Bill of Sewers, with a New Proviso." Ta:X^
That such rate was duly made, and that he was appointed collector thereof, justify the dis-
and so levied. Replication, de injurid. On this replication issue was joined, ground of his
h was agreed, that the declaration and subsequent pleadings might be referred s^aeni authority
lo as part of the case. The cause came on for trial at the Middlesex sittings in whatever that '
Michaelmas Term, 1834, before lAttledale, J., when a verdict was found for the i^^^^thority
may be, it is
pkintifffor the amount of the sum paid by the plaintiff to recover the goods taken away in
taken by the defendant, subject to the opinion of the Court on the following ^^^'^^
ease : — One Horace Watson is the landlord of several small houses situate in directing lum to
Thamat and Edward Streets, Bethnal Green, in the jurisdiction of the said ^°i,^|^^^°
CommissioDers of Sewers, which are occupied by different persons as his
tenants. The plaintiff is the occupier of one of the houses in Thomas Street
Before the seizure of the goods in the declaration mentioned, certain persons
were duly constituted Commissioners of Sewers by the Commissioners in the
plea mentioned. The following documents were given in evidence by the
defendant.
1st. The Commission of Sewers for the limits above-mentioned.
2nd. Precept to summon Jury and return of Sheriff.
3rd. Presentment of Jury (the part material to the case, was as follows) : —
J* And we the Jurors aforesaid, upon our oaths aforesaid, do further pre-
sent, that the several persons whose names are mentioned and contained in
the several schedules to this our presentment annexed, are owners or occu-
piers of lands, tenements, hereditaments, and premises, within the several
parishes of St. Matthew, Bethnal Green, &c., in the county of Middlesex; and
diet the lands, tenements, &c., held by the said persons respectively, are of
die annual value as set against their respective names in the said several
tdiedules. And we further present, that the said several persons whose
otmes are so mentioned and contained in the said schedules, do receive
btnefit or avoid damage, by the support, maintenance, &c. of the public
104
TERM REPORTS in the KING'S BENCH.
King*s Bench.
Sabourin
i;.
Neali.
sewers within the said Spttalfields and f flapping level. And we do present
the said schedules containing the names of owners or occupiers as afore-
said, being thirty-three in number, as part of this our presentment. In
witness, &c." This presentment was dated S6th August, 1831, and as forming
part of it, was a schedule, of which the following is an extract : —
" Parish of St. MaUhew, Bethnal Green:'
Owncn.
Occupiers.
Description of
Premises.
Rent-
aL
£.
30
20
42
10
70
Owners.
Occu-
piers.
• • . •
. * • .
....
Description of
Premises.
RenU
al.
£.
9
48
20
10
— WaUon.
Isaac Watson.
Hor. Watson,
Do.
Do.
Edward Street,
3HouBe8at£10
Thomas Street,
2 Do. - 10
4Do. 10— 12
IDo. - 10
7 Do. . 10
Isaac Watson.
Do.
Do.
Hor. Watson.
Edw.St.West.
1 House at £9
Court.
6 Do. - 8
Street.
2 Do. - 10
IDo. - 10
3 at 10/. 1 at 12/.
Richard Oliver.
There was a regular notice of presentment, and the rate made there<m
was in the following form : —
'< Sewers, Middlesex 1 "A tax-rate or assessment made upon the seve-
Tower Hamlets, 3 1*^^ owners and occupiers of lands, tenements, he-
reditaments, and premises^ in the several parishes of St, Matthew^ Bethnal
Greeny &c. &c. in the county of Middlesex, being a pound-rate of 9d, in the
pound by the year, charged upon the several lands, tenements, &c., now
or late in the tenure or occupation of the several persons whose names are
contained in the following pages of this book, according to the rents and
profits of the same, at the annual rack-rental and value thereof respec-
tively, pursuant to a decree of a Court of Sewers, holden for the said limits,
on the 2drd September, 1831, for and towards the defraying the charges and
expenses of the support, maintenance, &c. of the sewers of the said level ;
the works done, and to be done, in and upon and about the same ; and the
incidental expenses of the said commission, which said several persons fol-
lowing were, amongst others, presented by a jury, duly summoned and
sworn at a Court of Sewers holden for the said limits on the 15th July in
the said year, as receiving benefit or avoiding damage by the support, main-
tenance, &c. of the said sewers of the said level ; which said tax-rate or
assessment is as follows :-—
" Parish of SL MattJietv, Bethnal Green.'*
Ownen.
Occupiers.
Description of
Premises.
Rental.
Sum assessed.
Collected.
— Watson.
Isaac Watson.
Hor. WatBon.
Do.
Do.
Isaac WatBon,
Do.
Do.
Hor. Wation.
Edward Street.
Thomas Street.
3 at 10/. 1 at 12/.
Richard Oliver.
3Housesat£10
2 Do. . 10
4 Do. 10—12
1 Do. . 10
7 Do. - 10
1 Do. . 9
6 Do. - 8
2 Do. - 10
IDo. - 10
£*
30
20
42
10
70
9
48
20
10
£. «.
1 2
0 15
1 11
0 7
2 12
0 6
1 16
0 15
0 7
6
0
6
6
6
9
6
0
6
Edward St West.
Court.
At 8/.
Street.
TRINITY TERM, 1836. 106
The sums thus assessed amounted on the whole to 9/. 14s. 3d. It was Khg'i Bench.
proved by the defendant, at the trial, that Horace Watson had paid the ^•^n^^
water-rate for all the houses in question, and that the witnesses had never Sabouhiw
beard of the said Isaac Watson ; but such evidence was objected to by the Neale.
plaintiff*, and the objection was reserved. The house of which Richard
Olwer is stated to be the occupier, in the presentment and rate, is the house
in which the distress was made. The appointment of the defendant was
made by the Commissioners in the following terms: — "We do hereby
authorize, depute, and assign you the above-named collector, to be gatherer
of the tax-rate and assessment contained in the preceding pages of this book.
And these are, therefore, in his Majesty's name, to authorize, depute, and
asBgn you the said collector forthwith to ask, demand, receive, collect, and
get in the several sums of money, of and from the several persons as they
are added to their respective names, and are in the said rate contained, and
to make payment thereof to the Bank of England, to the account of this
Commission. And in case any person or persons shall neglect or refuse to
pay his, her, or their proportion of the said rate, upon demand , then you
the said collector are to summon such defaulters to appear at the Court of
Sewers, to show cause why they neglect and refuse to pay the same, to the
end that such further proceedings may be had therein as to law doth apper-
tain. In witness whereof &c. Dated this 7th of October, 1S31.** The
smninons to Horace Watson, to show cause why he should not pay, was in .
the following words : —
** Sewers, Middlesex, Tower Hamlets,
" To Mr. Horace Watson, Spitaffields and Wapping Levels.
" By virtue and in pursuance, and for the enforcing of a certain ordinance
■nd decree of Sewers, bearing date the 23rd September, 1831^ and made
under and by virtue of His Majesty's Commission of Sewers for the Tower
Hamlets, under the Great Seal of Great Britain, bearing date at Westminster
the 4th December, 1830, directed to certain Commissioners therein named ;
I being duly deputed and assigned on this behalf, do hereby summon you to
be and appear before His Majesty's Justices and Commissioners of Sewers
ibr the Tower Hamlets, or such of them as shall be then present and acting
nnder and by virtue of the said Commission, on Tuesday the 25th September,
1832, at twelve o'clock at noon, at the office of Sewers, No. 15, Great Alie
Street, Goodman*s Fields, within the limits aforesaid, at a Court of Sewers
then and there to be holden, to show cause why you neglect and refuse to
pay the sum of 9/. I4s, 3d, duly rated and assessed upon you, in and by a
certain presentment, inquisition, and assessment duly made by a Jury of
Sewers on the 26ih August, 1831 ; and ratified and confirmed by the said or-
dinance and decree in respect of certain lands, tenements, hereditaments, and
premises belonging to and occupied by you, situate in the parish of St, Mat"
them, Betknal Green, in the SpUalfields and Wapping level, within the limits
aforesaid, for and towards the charges and expenses of the support, mainte-
oancei reparation, reformation, and amendment of the sewers of the said
level ; the works done, and to be done, in, upon, and about the same, and the
incidental expenses of the said Commission ; and why the said Commis-
sioners should not, in default of such payment, decree and ordain from you
pajmoit out of such lands, tenements, hereditaments, and premises, or
106 TERM REPORTS in the KING'S BENCH.
Kiag*i Bench, make and issue a warrant of distress to levy the said sum on your goods
^^^•^^ and chattels^ together with the expenses attendant thereon, or take such
Sabouuh other proceedings against you as the said Commissioners shall, in their dis«
NxALx* cretion, think fit, and pursuant to the said Conmiission, and the provisions
of the statute in such case made and provided. If you do not attend, the
said Commissioners will proceed against you as if you had appeared. Dated
this I9th September, 1832.
" Please to bring this summons with you.
(Signed) <* Thomas Neaie, Collector.''
A letter of the date of the 27th March, 1832, written by the said Horace
WaUony was put in ; and, after objection, admitted by the judge, subject to
the objection. The plaintiff was distrained upon for 91. 14«. 3d. on the 12th
Aprily 1833, the same being the amount claimed in respect of all the bouses
assessed as the property of the said Horace WaUon. The plaintiff then put
in the warrant under which defendant seized the goods of the plaintiff, wbidi
recited, that '* Horace Watson was duly rated and assessed in the sum of
91, 14<. 3d. in respect of certain lands, tenements, &c. held by him^ situate
in the parish of St, McUthew, Bethnal Green, in the Spitalfolds and Wapping
level, within the Tower HamUts„ for and towards the charges and expenses
of the support, maintainance, &c. of the sewers of the said level ; the works
done, and to be done, in, upon, and about the same, and the incidental
expenses of the said Commission ; and that it appeared, upon the oath of
Thomas Neale, collector of the said rate and assessment for the said level,
that demand hath been made for the said sum of the said Horace WatsoHf
but that the said Horace Watson hath neglected and refused to pay the
same, and that the same still remains due and unpaid. And whereas it
hath been duly proved to us, that the said Horace Watson hath been duly
summoned to show cause why he hath neglected and refused to pay the said
sum, and why, in de&ult of such payment, he should not be proceeded
against according to law ; but the said Horace Watson hath not appeared in
pursuance of such summons, and hath not shown any good and sufiBcient
cause why the said sum should not be paid. These are, therefore, in His
Majesty's name, to will and require you forthwith to make distress for the
said sum of 91. 14i. 8d. of the goods and chattels of the said Horace Wat-
son ; and if within the space of five days next after the making of the said
distress, the said sum of 9/. 14i. 3d., together with the reasonable costs and
charges of taking and keeping the said distress, shall not be paid, that then
you do sell the said goods and chattels so by you distressed, and levy the
said sum of 9i. 14i. 3d., and the reasonable costs and charges of keejnng
the said distress and sale thereof, &c., and that you restore the overplus,
&c. to the said Horace Watson upon demand ; and if no such distress can be
had and taken, then you, the said Thomas Neale, are hereby required to
certify the same to us, to the end that such further proceedings may be had
therein as to law doth appertain. Given, &c. this 12th February, 1833."
This warrant was dnly signed and sealed by the Commissioners therein named.
A notice of the distress was also put in. Several questions were intended to
be raised on this case, but as the judgpoaent of the Court was confined to
the single point, that the document^ set out in the case showed a special
TRINITY f&RM, 1836. 107
authority to have been oonferred on the collector, which special authority, it i^ti^i Bimh.
was admitted, he had exceeded, unless he could justify under his general >^v^^
authority as collector : the report of the arguments has been confined to that Saboubix
JTcffy, ibr the plaintiff. — Even if it is assumed, that the collector might, on
the antlMNrity of Caiiis <m Sewers (a), upon his general authority as collector,
distrain without a warrant, (which is positively denied,) it is clear that he
cannot justify, on that general authority, when he has received a warrant.
His general authority as collector is then restrained by the specific terms of
the warrant. Here he had a warrant, which directed him to distrain upon
Ae goods of Mr. Horace Watum^ and to sell the same in de&ult of payment.
He has not obeyed either of these directions. The defendant cannot here
justify what he has done under the issue taken upon the relocation, for that
v^lication only puts the defendant upon the proof of his plea ; and the jus*
tification in the plea is under the special authority given him by the Com-
misaioDerSy which authority he has not followed.
Sir W* FoUeUf for the defendant. — It is clear that a collector of sewers-
xate may distrain by virtue of his general authority. The passage already
cited firom CaUie on Sewers proves that position. In another place the same
doctrine is supported. In speaking of the sale of goods seised, Mr. CidUs takes
a distinction between distraining and selling goods, and says, " the baihffs
who distrain cannot ex q^to, without a special warrant first directed to them
finr that purpose from the Commissioners, make sale of goods distrained (6)."
The restriction here said to exist, as to the power of the collector to sell
without a warrant, shows, that at that time it was considered clear law that
he mi^t distrain without such an authority. If, at the time of the distress^
there was a good right to distrain at all, that is sufficient. It is clear, that, at
all eve&tai, the defendant might distrain the plaintiff's goods for so much of
the rate as was assessed upon the house inhabited by the plaintiff. The
veidict, therefore, must be entered for the defendant, for he was justified in
distraining for 7i. 6d. ; and the question raised on this record is not as to
the amount of the distress, but as to the right to distrain. If he is justified
as to the distress for the 7i. 6<i., he is justified as to the whole ; for, having
entered upon a good title, he may justify all he has done as done under it ;
Imcos v. NockeUs (c). — [Paiteson^ J. — How did you prove your plea?]— By
showing the appointment of the collector. — [Po^eioit, J. — That is, by
ihowing an appointment of him to collect this particular rate, and limiting
Us authority as to the rate, and the person from whom it was to be taken.
It cannot be said, that the Commissioners cannot prevent the collector from
distraining upon any particular individual. Have they not done so here ?] —
Md i they bare in the {ordinary way directed the collector to levy on the
person assessed, but that is an enabling not a restraining direction ; and the
coUedor^s general authority will enable him to distrain, though it may not to
mO dbe goods of a stranger on the land assessed ; CalUsy 185 — 193. This
late k a charge on land. Rex v. Adams{d) ; and> being so, any goods found
M P^ 180, id tbe old edidon > U14, of (f) 1 Clark & FmneUy, 438.
ibt 8vo. editioii. W 4 Barn. & Adol. 61.
{b)Ceai$emS§mm,l9S^
108 TERM REPORTS in the KING'S BENCH.
King's Bendi, on the land may be distrained to satisfy it^ under the general authority of
the person appointed to collect the rate.
Sabourin
Nbalb. Kelly, in reply. — The judgment of the Court must be for the plaintiff.
The distress is altogether illegal. No part of it can be supported. IVhat-
ever may be the general power of the collector, it is clear, that in this
instance he derives all his power from two documents, which are now before
the Court. It is impossible to say that they gave him any authority to dis-
train the goods of the plaintiff. The case of Lucas v. Nockell^ therefore,
does not in the least degree apply to this case.
Lord Denman, C. J. — The facts before us might have raised some import*
ant questions for the future government of the Commissioners of Sewers,
and of persons liable to pay rates. On the one hand^ it is desirable that the
Commissioners should not be defeated in their duty, and prevented from
recovering rates which are properly due ; while, on the other, it is equally
desirable that individuals should not be charged much beyond what they are
legally liable to pay. But this case is stated in such a way as not to raise a
point of any consequence at all, except so far as to prevent persons from
justifying under circumstances which give the appearance of a justification,
but which in reality afford none at all. It is found that the plaintiff was
distrained upon for .the sum of 9/. 14^. Zd, due from Mr. Horace Watson,
and a warrant was issued to levy that sum. That is under the statute of
Anne, under which the warrant could not be issued to authorize a seizure of
the goods of the plaintiff, but of those of Mr. H, Watson. The first question
then is, did this defendant receive that warrant from the Commissioners ?
It appears that he did; and that they appointed him the collector, and
used large and extensive terms in giving him his authority ; in which it is
said must be included the power to distrain upon the premises. But I am not
aware that the appointment of a collector by Commissioners of Sewers,
does necessarily include the power of distraining goods for payment of the
sewers-rate. It would require stronger authority than the opinion of any
text writer, that he has any such general power. The authority given him
here by the Commissioners is to receive from each person the sum of money
set against that person's name. But whatever authority he might have to
levy on Watson, he has none to levy on a person who does not fall within
the description of those declared liable to the payment of these rates. His
general authority, whatever it may be, is here expressly limited by the terms
of his warrant. This is the short answer to the argument derived from bis
general character of collector, and to me it appears decisive of the present
case.
LiTTLEDALE, J. — In this case the plaintiff is entitled to judgment. The
warrant is only an authority to t&ke the goods of Mr. Watson, I do not say
that the collector may not have such a warrant as would authorize him to
take the goods of the plaintiff, but that such a warrant was not given in this
ease. What was done here as if under the warrant cannot be justified by it.
But then it is said, that the character of the collector authorizes him to make
the distress, though not to sell th6 goods. How is this authority proved ?
He is proved to be a collector, and to have a general authority with respect
to demanding the sums in question — ^he is to summon persons to attend at
TRINITY ffeRM, 1836.
109
Sabourin
V.
Nbals.
the next Court. Watson was summoned, but did not attend. Has the col- KingU Bench,
lector a right, by virtue of his office, to do more ? The general authority of
the defendant is disproved by the circumstance of the Commissioners giving
him a special warrant to make a distress. But then it is said, that it must
be taken that what he had done had been done under the general authority
given him by the appointment of him by the Commissioners ; but they have
done nothing which compels us to consider him as vested with a general
aDtbority to distrain ; for in fact they gave him a special authority, which itself
dk) not enable him to do what he has done. Then it is said, that he may defend
himself upon the principle of the rule as laid down in Ijicas v. NockeUs, I
admit the full authority of what was decided in the House of Lords in that
ease — that you may seize under one authority, and justify under another.
But the jury here found that the seizure was under and by virtue of the
warrant. Though there might be an authority to seize, that finding does
not show that the warrant which they found to be the instrument under
which he seized, was such an authority.
Patteson, J. — It is said in this case, that a serious and important ques-
tion was intended to be raised by the Commissioners of Sewers for the
Tomer Hamlets^ and that this question was, whether a number of small houses,
happening to be in the possession of one landlord, the Commissioners can
nte the landlord, and distrain on any one of the tenants for a rate made on
the whole of the property ? and perhaps^ also, the further question whe-
ther any officer of the Commissioners has a general power virtuie officii to
distrain ? This is said to be their intention, and they set about effecting
it in the most extraordinary way in which any person in this world ever did
let about such a business. (His lordship here went through all the statements
io the case, and all that had been done by the Commissioners.) They
appoint a collector, and instead of giving him the authority which he might
have under the statute of Henry 8, they direct him to collect money from the
persons named in that particular rate. They give him a special authority
alone. Expressio unius est exclusio alterius. If they choose only to give
him an authority to receive and pay over, he can have no authority to
distrain* What is the next thing ? Mr. Horace Watson is summoned — he
does not appear — then a warrant goes to the same person, to distrain his
particular goods, and to sell them. That is under the statute oi Anne^
which only gives them power to issue such a distress against the persons
whose names are placed in the rates. The collector has not any general
authority except under that instrument which appointed him collector — that is,
an authority only to demand and receive, and not to distrain. The special
warrant of distress is to seize the goods of Horace Watson^ and yet the col-
lector takes those of the plaintiff*. The justification is not in any way made
oat, and judgment must be for the plaintiff*.
Williams, J., concurred.
Judgment for the plaintiff.
1 10 TERM REPORTS ik^he KING'S BENCH.
Bail Court
The King v. The Justices of Oxfordshire.
1. The appika- fpHIS WHS a rulc to show cause why a mandamus should not issue to the
tioD by the over> JL ^ , /
seen against Uie Justices of Oxfordsldte, Commanding them to enter an application of the
^ri^^*t^el!^ overseers of the parish of BUichington, for an order) of filiation as of last
practicabia ses- Mlchoelmos Sessions, and to enter continuances to the next Midmmmer Ses-
cwwfi^b^es **°"'" ^' appeared that the hastard child was born on the 14th oiJune last,
chargeable. and immediately became chargeable to the parish. No api^cation was made
tion fortiie JuT^ *' ^^ ^^dsummcT Sessious which were held on the 30 th o( June, The over-
uceswhatdrcum- secrs gave the requisite notice to the person intended to be charged, and
tide the ovenem ^^^^ ^ the October Sessions, but discovering that it would be necessary,
STJ^lt'^a'su'S"' ""^^^ * * ^ ^*^' *' ^* ^^* *• '^^' '^ ^ provided with material corroborative
sequent Sessions, evidence, and having prepared none, they made no application at that time
an^i^i^*'*** to the Court. At the Hilary Sessions, 1836, application was made, when
tionatasub- the Justices rcfused to hear the case, as the application was made too late.
!!!?«.*"u ut-.* . ^t was admitted that the writ of mandamus could not issue in the terms
sionSy It is not ne*
cesuury to enter prayed for, and that the Court should mould the writ so as to give the over-
^V^ons? '^^ «^" ^^elief, if they were entitled to it. In Easter Term last,
Chilton showed cause. — This question turns on the construction of 4 & 5
WilL 4, c. 76, s. 7ft, and depends on whether that enactment makes it im-
perative on the overseers to apply, if at all, to the next Sessions after a
bastard becomes chargeable. The meaning of the statute is, that the appli-
cation shall be made at the next practicable Sessions after the bastard is bom
and becomes chargeable. The words of this statute are similar to those of
17 Geo, 2, c. 38, s. 4, and it has been held in the case of The King v. The
Justices of Worcester (a), that the appeal given by that act must be to the
next Sessions. By the 73d section, there is a provision that the costs of the
maintenance shall not be allowed for above six months previous to the
hearing of the application, and it will be contended that that section shows
that the legislature did not intend to compel the overseers, by the 7Sd
section, to apply at the next Sessions. The 73d section, however, relates to
the hearing only of the application, and there are many circumstances which
may delay that hearing ; for instance, the illness of the mother of the child,
the absence of witnesses, or the impossibility of finding the person charged.
The clear intention of the legislature was to impose some restriction on
these applications, and to compel the overseers to elect immediately whether
they would proceed against the reputed father. That intention is ftirther
shown by the 73d section, which makes it imperative on the Court to order
fuU costs to be paid to the person charged, in case no order is made.
Lumley, contrd. — This point has been already before the Court in the case
of The King v. The Justices of Carnarvonshire (6), but was not then decided.
The words of 4 & 5 WilL 4, c. 76. s. 72, are directory only, and not com-
pulsory. The argument that the 73d section applies to those cases only
where the hearing of the application has been delayed for more than six
(a) 5 Maule & SeL 457. (6) 1 Har. & Wol. 324 ; 5 Ner. & Man. 364.
TRINITY TBRM, 1886. Ill
months, cannot be supported, as that would tend to show that it is not ^^ti Court,
necessary in aU cases to make the application at the next Sessions, and v^^/^
therefore, to support the construction that the 72d section is directory only. '^^ ^^"®
The chargeability is, moreover, a continuing act, and is a renewing charge- xhe Jutticat of
abflity from day to day, like a continued trespass, and the overseers may OxrosotHiKB.
therefore proceed against the father at any Sessions, whenever they think it
right so to do ; where, however, they thus delay the application, by the 7Sd
section they are restricted from recovering more than six months expenses
ot maintenance. If tlie construction that section 72d is compulsory, is now
hdd to be good, it will follow that in no case is any direction left to the
Justices to hear the application at a subsequent Sessions, as the only provi-
sion given by the statute is by s. 73, in cases where there is not time to give
the necessary fourteen days' notice. This would be a serious inconvenience
when the party charged could not be found. So, again, it would follow, that
if a bastard child became chargeable for however short a time, and that afler
the ceasing of that chargeability, a Sessions should be held, and then the
bastard should again become permanently chargeable, the overseers could
have no redress against the putative father.
Cur, ado, vuU»
Coleridge, J., the first day of this Term, gave judgment. After reciting
die fkcta of the case, he continued : — ^The question turns entirely upon the
construction which the 72d section ought to receive ; that enacts, that *< when
any child shall hereafter be bom a bastard, and shall, by reason of the in-
ability of the mother of such child to provide for its maintenance, become
chargeable to any parish, the overseers or guardians of such parish, &c. may,
if they think proper, after diligent inquiry as to the father of such child,
qiply to the next General Quarter Sessions of the Peace, within the jurisdic-
tion of which such parish shall be situate, after such child shall have become
diargeable, for an order, &c" I have no doubt that in construing the words
"next sessions,*' I ought to apply the decisions upon similar words in former
statutes, which give appeals against orders of removal and poor rates ; and
to hold them to mean the next sessions previous to which the requisite
notice can be given, and at which^ reference being had to all the circum-
stnces, it is reasonable to expect that the parties should be prepared to go
to the hearing of the application. I think it is fitting to lay it down as a rule,
that the statute does not require the applicants to undergo the unnecessary
expense of entering and respiting at a sessions, at which it is impossible that
the parties should be prepared to substantiate the case ; a circumstance, it
Aoald be observed, which may fairly be expected to occur with regard to
nearly one-third of all the applications arising between any two given sessions.
So fiur is clear, but a question then occurs, to what event or events the word
** next" has properly relation? Three are previously mentioned, the two
ibmier, ** the birth of the child and the chargeableness of the mother," are .
considerations precedent to the application ; the last, '* diligent inquiry by
the overseers as to the &ther," may, perhaps, be directory only.
In the present case it was admitted that the chargeableness had com-
menced with the birth, and that sufficient inquiry as to the putative father
had been made in time to bring on the hearing at the October Sessions. It
would seem, therefore, that in any view but one, die application at the
112 TERM REPORTS in thb KING'S BENCH.
Bail Qmrt. Hilary Sessions was too late. But it was contended, tbat the fact of charge-
v^v-^ ableness was in its nature renewing from day to day ; that as the continuance
The King of a trespass was a new trespass, so a continued chargeableness was a new
The Justices of ^^^ every day, and that the parish officers were not bound to apply upon
OxFORosuiRE. the commencement, for that the statute might well be construed as leaving
them a discretion to relieve the mother and child, which might be prudently
exercised if the charge were likely to be of a temporary nature, and the right
might yet remain to have recourse to the father at any point of its duration.
In support of this it was observed, that the 7dd section, which directs tlie
costs of the maintenance to be calculated from the birth of the child, except
where the application should be heard more than six months after that event,
and then limiting it to the preceding six months, seemed to show that the
legislature had contemplated the hearing as likely to take place, in many
instances, more than two sessions after the birth of the child. This provi-
sion, however, applies to the hearing, which may be postponed for many
reasons^ and has little bearing on the present question.
Upon consideration of the general policy of that part of the statute which
relates to this subject, I am of opinion that the argument cannot be sus-
tained. It is clear that the legislature intended to impose some limitation of
time on these applications, but this mode of construing the clause would in
effect take away all limitation. It is clear also that the legislature intended
to throw restraints upon the recourse formerly had to the putative father,
and to give him a protection which he had not before : but to hold that the
application may, at the discretion of the parish officers, be made at any time
during the seven years following the birth, is to introduce a circumstance not
merely unfavourable, but unjust to the party charged, as in proportion to the
distance of time [must be the difficulty of establishing that very species of
defence which must in such cases be often necessarily relied on ; while on
the contrary, there is no injustice in requiring them to elect, when the charge-
ableness commences, whether they will have recourse to the putative father
or not.
As a general rule, therefore, I am of opinion, that the application must be
made at the next practicable sessions after the occurrence of the child's birth,
and the mother's chargeableness in respect of it ; still, however, leaving
room for the exercise of a discretion by the justices in each case of an ap-
plication made later, where it should appear that the delay had been occa-
sioned by an ignorance of the father^ or inability to procure evidence against
him. This discretion would be regulated by a consideration of all the cir-
cumstances, and mainly whether due diligence had been used. It would be
liable also in its exercise to the supervision of this Court. Applying these
principles to the present case, no sufficient reason appears to excuse the
delay that has occurred, for an ignorance of the plain provision of the statute
is not such a reason. The justices have, therefore, in my opinion, exercised
their discretion soundly, and this rule must be discharged, but, under the
circumstances, without costs.
Rule discharged without costs (a).
(a) See the case of The King v. Heath, po$t, 143 ; and 6 Nev. & Man. 345.
TRINITY TERM, 1836, 113
Bail Court,
Barker v. Gleadow.
^HIS was an action for goods sold, and an order for time to plead had After the defend.
been obuined on the usual terms of pleading issuably. The defendant "' ^^"^ f^"*
pleaded, that on the proposal of the plaintiff, who was to have a share in termsofpieAding
the profits, the goods were consigned abroad, and were not to be paid for I!!J"p^^ded
until they were sold, and the proceeds returned to this country, and that no ^"^ demurring
account had yet been received of the sale. The plaintiff's replication took '^SoT. ^"^
issue on several things, and had a wrong conclusion. The defendant
demurred specially, assigning for cause of demurrer, duplicity and the
wrong conclusion. The plaintiff then signed judgment as for want of a
rejoinder, contending that the demurrer was contrary to the terms of plead-
ing issuably. A rule having been obtained to show cause why this judg^
ment should not be set aside for irregularity,
CwmptOHf in Easter Term, showed cause.
Martin, conird.
Cur. adv. vult.
CoLBRinoE, J. this term {June 1st), gave judgment. — This was an appli-
estion to set aside an interlocutory judgment, which had been signed upon
the ground that the plaintiff's replication had been specially demurred to
by the defendant, afler time to plead given upon the usual terms. Two
points were made ; first, whether a special demurrer, filed bond fide and for
good emuct was an issuable plea within the meaning of the undertaking ;
and secondly, if it were not, whether that undertaking extended prospec-
tivdy to all future stages of the pleadings in the cause, or was confined to
the state in which the record was at the time of the undertaking being
given. As the authorities on these points are not uniform, I have taken time
to consider my judgment. For the discussion of this case, it may be
enough to state as to the pleadings, that the replication is extremely in-
fiMinaly and, if allowed to stand, would place the defendant's case in a diffi-
cult and disadvantageous position ; and that the demurrer does not appear
to have been filed for the purposes of delay, but with the fair object of
rdieving the defendant from that position. Upon the first of the two
points above stated, there are not wanting cases such as Dewey v. Sopp (a),
and Longford v. Waghom (6), in which the undertaking has been 'construed
merely as a restraint from demurring unfairly for delay, and for formal
defects entirely collateral to the merits of the cause. Thus in the last case,
where to a plea of title in trespass quare clausum f regit, the plaintiff had
replied generally de injurid, and the defendant had demurred specially, the
language of the Court is, '* the demurrer was a fair demurrer, from which
the plaintiff is not precluded by the terms of pleading issuably." These
cases, however, are met by others, which lay down the rule in a more prac-
ticable and definite form, that no demurrer is an issuable plea if it cannot
be sustained without assigning the causes specially. This is expressly
(m) 2 sum. 1 186. (6) 7 Price, 670.
▼OL. n. I
114
TERM REPORTS in ths KINO'S BENCH.
Babkbr
GtEAOOW.
Bail Ccurt, stated in Bell y. Da Costa (a), and is the principle of the decisions in BUck
V. Dymoke (b\ Newnham v. Dowding (c), and SawteU v. GiUard (d). In
Nanney v. Kenrick (e), Bayley, B. says, *' that a special demurrer b not an
issuable plea, but that, if there are good grounds, the Court will gometimes
strike out the causes." That is ^o say, if the demurrer can be sustained
without the assignment, the Court will sometimes strike that out and allow
the demurrer to stand as general, which practice seems to be a strong con-
firmative of his general position, that a special demurrer in form is not an
issuable plea. This appears to me at once the most convenient and rea-
sonable rule to establish ; because it admits of the most easy and certain
application, and leaves no room for questioning, in every case, whether the
demurrer is bond fide, and goes to the merits or not ; because^ upon a ques-
tion of whether a particular demurrer be an issuable plea or not, those
inquiries are irrelevant ; and because it imposes nothing hard upon the
defendant, who by the hypothesis has become unable to make the defence,
on which he wishes to rely, in the time allowed by the practice of the Court ;
who, if he had intended to rely on any formal defects in the action, should,
at all events, have done so within that time, because he must have been
apprized of them, and the inconvenience, if any, which he sustained thereby,
as soon as the declaration was delivered ; who is therefore called upon to
pay a price for an extension of time to put in a defence, which may fairly be
presumed to be intended to be a substantial one, that price being in effect
an agreement on his part to speed the cause to its conclusion, and to bring
it to an issue on the substantial merits of law or fact, without regard to any
formal inaccuracies in the plaintiff's statement.
I am of opinion, therefore, that if this be to be considered as a demurrer to
the declaration, the judgment will have been rightly signed. But it remain!
to consider the second point, namely, whether the undertaking was limited to
the state of the record at the time of its being given, or extended to every
future step in the pleadings. The latter is assumed in the cases of Devfey v.
Soppf and Bell v. Da Costa, before cited, with nothing said expressly on this
particular point ; and it is decided in SawteU v. GiUard, d J. Jbboit saying,
'< that the undertaking is not performed if the party by his pleading fails to
bring the merits of the case, or some question of fact, or some question of
law, arising upon the facts, in issue.*' The argument of counsel, however,
did not bring this particular point, nor a prior and contrary decision in the
Common Pleas, to the attention of the Court, which somewhat detracts from
the authority of the case. On the other hand, in the case alluded to, that of
Beits V. Applegarth (/), the attention of the Court of Common Pleas was dis-
tinctly drawn to the point, and they decided that <* the order for time, under
terms of pleading issuably, must apply to the existing state of the cause at
the time it is issued, and does not extend to cover subsequent errors.'* 1
do not rely upon Langford v. Waghom, because the decision proceeded on
another ground; nor wpon Gisbome v. Wyalt{g),m which, however, my
brother Parke appears to have been of opinion, that it was not intended by
the undertaking that the plaintiff should be allowed to reply double.
(a) 2 Bos. & Pal. 446.
(6) 1 Bing. 379.
(e) 1 Chit. 111.
(d) 6 0OW1/& Ryl. 620.
f:
c) 1 Dowl.P.C.610.
/)4BiDg.26r.
(g) 3 Dowl. P. C. 505; 1 Gale, 35.
TRINITY TERM, 1836.
116
UpoD this lUte of the authorities, it is necessary to make an election, and
in a matter of practice we are allowed, and we ought to adopt that rule which
upon the whole may appear the most convenient and equitahle. It has
been suggested to me by high authority, that the rule laid down in SawteU
V. Giitard is the most proper to be adopted, with this qualification, that the
defendant should be at liberty, whenever the plaintiff's replication was
infimBmlt so as to embarrass him in his defence, to apply to the Court or a
judge to relieve him from his undertaking, and to be allowed to demur
speeiaUy. By this provision, it is said the plaintiff will be sufficiently kept
JD eheck and the defendant protected, while by the rule itself the great evil of
delay by demurrers for form will be prevented. It is added, that it would be
convenient, with the same object in view, if tlie power to demur specially
eodd be brought under the control of the Court in all cases ; and that we
OBght to avail ourselves of the opportunity to exercise that control over it
in the numerous instances which the giving time to plead would thus afford.
I have considered this opinion with the attention it deserves, but the
eondosioo to which I have come is in fiivour of the rule laid down by
Uie Court of Ccmnum Pka$. Considering the two rules without reference
to the qualification suggested as to the former^ the latter appears to me
the more convenient, because it tends to preserve the regularity and cor-
reetnesa of special pleading, — an object of the highest concernment in the
administration of the law ; whereas the former has a direct tendency to
encourage carelessness at least, if not unfairness in the plaintiff's plead-
ing; informality in pleading being, perhaps, in the greatest number of
instances, the result, not of ignorance or inadvertence, but of design to
l^ace the adversary's case in a disadvantageous position. It appears to me
also more equitable, because if the undertaking be limited to the state of
the record when it is made, the defendant knows the price he pays for the
boon ha asks, both whatever advantage he foregoes, and whatever dis-
advantage he incurs ; let the amount of either or both, therefore, be ever so
great, he cannot complain. But it never can be understood, that when he
tmdertakesy in the words of Lord Tenterderif ** to bring the merits of the case,
or some question of fact, or some question of law arising upon the facts, in
iasne^" he undertakes to do this under all the disadvantages, it may be,
absolute impossibility, which an astute adversary, by subsequent infor-
mality of pleading, may cast upon him. It is well known that the time
allowed for pleading is so short, that whenever the facts are at all com-
plicated, or communication must be had with the country for information, or
counsel consulted on the proper pleas to be adopted, some allowance being
made, as there must in reason be made, for their various engagements, an
spi^ieation fbr extended time is of absolute necessity. It is made as a
matter of course, it argues no default in the defendant, and implies no desire
to proeimstinate the decision of the suit. Is it then reasonable to intend,
that in a case of such constant occurrence, the judges impose, as a usual
terai upon the party, an imdertaking so understood ? A speedy coming to
the issue, and a retrenchment of merely formal and dilatory objections, are
very important objects ; but they would be purchased too dearly, if one
party were at the same time allowed so to frame his pleadings as to prevent
the real merits from being in issue, or to compel the other party to try them
at a disadvantage. Nor does the qualification suggested, of an application
i2
Bail CourU
Barkka
V.
Glbadowi
116
Bail Court,
BlRKBB
Gleaoow.
TERM REPORTS in the KING'S BENCH.
to the Court for leave to demur^ appear to me to remove these objections.
It must be remembered, that another term imposed on the defendant is to
rejoin gratis, ue, within twenty-four hours, — a period too short in the majority
of cases to determine upon and availably make such an application. It is
probable, that from the very shortness of the time allowed for consideration,
it would be made almost as a matter of course in every case of a replication
informally pleaded ; if made to the Court, it is attended with considerable
expense, and may occasion much delay ; if to a judge at chambers, it re-
quires him to enter more into the merits of the pleadings, and often of the
cause itself, upon affidavits, than is at all desirable. I would observe too,
that the plaintiff has the less ground to complain that his replication, if
informal, is liable to be demurred to, as it is become now more generally
understood than formerly, that the mere statement of a number of facts, all
forming one answer, does not fall within the definition of duplicity, and that
whenever the plea consists of mere matters of excuse, in whatever form of
action, the replication of de injurid generally, is allowable. I am therefore
of opinion, upon the whole, that it is better to abide by the rule laid down
in the Common PleaSf according to which the defendant was not by his
undertaking precluded from demurring specially to the replication, and
consequently this judgment must be set aside.
Rule absolute.
A charge for ad-
vising a client
as to an execu<
tionon a judg-
ment obtained
against him, is not
a taxable item
in a bill of costs,
so as to require
a signed bill to
be delivered be-
fore bringing an
acUon.
Pepper v. Yeatman.
^HIS was an action by an attorney for his bill of costs. The trial took
place before the under-sheriff for Hampshire. Previous to the ^action
being commenced, the plaintiff had not delivered to the defendant a signed
bill, according to the statute, 2 Geo, £, c. 23, s. 23. A verdict was found
for the plaintiff, the under-sheriff giving the defendant leave to move to
enter a nonsuit, on the ground that the plaintiff's bill of costs contained
items which were taxable, and that he had not delivered a signed bill pre-
vious to bringing the action. One of the items in the bill of costs was this—
" Attending on you and your son several times, respecting an action at law,
which you had tried at IVinchester at the last assizes, and wherein a verdict
was given against you ; and advising you fully respecting a bill of sale, given
by you to Captain Moore^ of stock, &c. ; and perusing such bill of sale, when
it was determined to apply to Captain Moore to have the same put in force,
13<. ^J.*' Another item was — ^* Attending on you respecting the sheriff
having previously levied a warrant against your property, at the suit of the
plaintiff in the action against you, although the officer*s deputy was not in
actual possession, when Mr. Bashett levied under the bill of sale, and very
fully advising you thereon, 13«. 4ed,^^
J, Manning now moved for leave to enter a nonsuit accordingly. — It has
been held in several cases, that it is not necessary that the business charged
for should be business done in Court, in order to make the items taxable. It
is sufficient that the business be done in respect of an action which is in
TRINITY TERM, 1836.
Court ; Watt v. Coiiins (a), Smith v. Taylor (6), IVardle v. Nicholson (c).
Tiiese items are clearly for business done in respect of a writ.
Coleridge, J. — ^Thc first item in tliis case mentions that the action is con-
cluded, and is respecting an application to a previous vendee of some goods,
to induce him to put the bill of sale in force ; that is not within the case of
IFalts V. CoUiiu. My doubt is as to the second item, but I think, taking the
whole together, it is not a charge in respect to any assistance in the suit,
being in fact for the purpose of defeating the suit. My present opinion
is, that neither of the items is taxable.
Cur, adv. vult,
Coleridge, J, (the next day. May 26th.) — I am of the same opinion as
yesterday, that these are not taxable items. The first has nothing to do
with any action at that time in existence, but is in respect of a previous
bill of sale, and as to advising it being put into force. That is a matter with
which the attorney in a cause has nothing to do. The second item shows
that the plaintiff had issued execution, but the advice relates to the
enforcing the bill of sale, and I cannot see that that has any thing to do with
the action. Neither item, therefore, is taxable, and no rule can be granted.
117
Bail Court,
Pepper
V.
YXATVAN.
Rule refused.
(d) By. & Moody, 284 ; 2 Car. & Payiie, 1 Dowl. P. C. 212.
?1. (c) 1 Ne?. & Man. 355.
(6) 5 Moore & Payne, 66 ', 7 Biog. 259;
SoMERs V. Miller.
IN an action ^by an indorsee against the maker of a promissory note, the
defendant pleaded that no consideration was given for it. To tliis plea
Uiere was a demurrer, and the case was put down for argument, and stood the
last in the special paper for May 27th. No demurrer books were delivered
by the defendant, according to the rule Hilary Term, 4 Will, 4, s. 7 {d).
J. Jervis, on the 28th of May^ moved for a rule for judgment.'^The plea
is clearly bad, according to two cases already decided (e), and owmg to
the arrear of business, it is unlikely that the demurrer should come on for
•rgmnent this term. The defendjmt has not delivered the demurrer books,
which be was bound to do four days before the day appointed for argument,
and it is not sufficient if he delivers them four days before the day it is
actually argued*
Coleridge, J.' — You may take a rule for judgment, unless cause is shown,
and serve that rule on the defendant.
Rule accordingly.
(i) 2 Dowl. t". C. 305.
(e) Trinder v. SmtdUy, 1 Har. & Wol. 309, and Graham v. Pitman, id, note.
A defendant
Imriug neglected
to deliver the de-
ronrrer books ac-
cording to the rule
of Court, the
Court granted a
rule HMi for jodg«
nent.
118
TERM REPORTS in the KING'S BENCH.
BailCmtrt.
Hie Court will
not grant anile Id
the alternative,
calling on an at-
torney to show
cause why he
should not deliver
np certain papers
before a certain
day, and if not,
why an attach-
ment should not
istae.
Rosco£ V. Hardman.
A RULE having been obtained in a previous term, calling on an attorney
to show cause against it, the matter was referred to the Master. The
Master had the parties before him, and having reason to think, on the
hearing of the case, that the attorney had certain papers in his possession,
directed that he should make further inquiries, and search for them. Hie
attorney, on going again before the Master, refused to make any further
affidavit about the papers. The Master then made his report, in which he
stated that it appeared to him very probable that the attorney had possession
of the papers.
Hoggins now applied for a rule to show cause why the attorney should not
deliver up the papers mentioned in the Master's report before a certain dayi
and if not, why an attachment should not issue against him. The officer of
the Court objected, that this was in fact applying for two rules, but it was
submitted that, under the circumstances, the rule ought to be granted in die
form prayed for.
Coleridge, J. — If you think you now have grounds on which to move for
an attachment, you may move for one ; or if you think you have only
grounds at present for a preliminary motion, to show cause why he should
not deliver up the papers, you may move in that form, but you cannot have
the rule in this form.
Hoggins then took a rule calling on the attorney to show cause why he
should not deliver up the briefs, pedigrees, papers, &c., mentioned in the
Master's report, and why he should not pay the costs of the application.
Goods haviog
been seised and
sold under an ex-
ecution, and the
proceeds paid over
to the execution
creditor, the
kberiff cannot
apply to the Court
for relief under
the Interpleader
Act, though he
had no notice of
the claim until
after the sale.
Inland v. Bushell.
f N this case a fari facias was sent by the attorney for the plaintiff, with a
request that a special warrant should be directed to a particular person
named. The special bailiff seized some goods, sold them, aad^iaid the
proceeds to the execution creditor. After the sale, and four days after the
writ was delivered, the sheriff received notice of a claim to the goods, from
the assignees of the defendant, under a fiat in bankruptcy. The sheriff^ not
knowing the sale had taken place, informed the plaintiff's attorney of the
claim, and heard nothing more of the matter for six weeks, supposing the
sale was not proceeded with. At the end of that time he was ruled to return
the writ o£ji,fa. by the defendant's assignees.
Wkitmore moved for a rule under the Interpleader Act, 1 & 2 WiiL 4,
c. 58. — In the case of Scott v. Lams (a), the Court of Exchequer held that
the money being paid over to the execution creditor, the sheriff* was not
(a) 1 Gale, 204 ; 2 Cromp. Mees. & Ros. 289 ; 4 Dowl. P. C. 259.
TRINITY TERM, 1836. 119
entitled to relief under the act. This case differs iu its circumstances, and Bail Coutt.
the Court may think right to grant the rule.
Inland
CoLEEUKSSy J. — I think this is not a case for the interference of the Buwbll.
Court. There are no longer any contending claimants. The execution
creditor is satisfied, and now another person threatens the sheriff with an
action for what has been done. I fear he must stand the trial of that.
SiqppasiDg a rule were granted, and the execution creditor was not to come
ia and show cause, he would then be barred, but of what ? He has already
receired the proceeds of the sale.
Rule refused.
Jones v. Jehu.
^HE defendant in this cause was arrested for the sum of 79/. 18<. ; the sum a verdict having
of 15L was paid into Court. The cause came on for trial, and after it cot^nt ^ the
WIS partly heard, it was agreed to refer it to an arbitrator. A verdict was plaintiff, and the
tben taken for the plaintiff for 100/., and the cause and all matters in differ- ten in difference
ice were referred by the usual order of nisi prius ; the costs of the cause to referred, the erbi-
^ ' . . tntor Awarded a
abide the event, and the costs of tlie reference to be in the discretion of the leu sum to the
arbitrator. The arbitrator, after hearing the parties both as to the matters in ^^^^'
die cause, and also as to another matter in difference, made his award, where- arrested the de-
by he reduced the verdict to the sum of 251. 10#. 6d., over and above the ^^"^^t^Jl^
15L paid into Court. He also awarded, that another action brought by the ly on tue other
plaintiff against the defendant should cease, and that the plaintiff should pay ^^sMt^Zit. the
the costs incurred by that action; and he further awarded, that the defendant defendant wa» not
should pay the plaintiff a sum of money on account of a claim for which no hllwng hu coata
action had been brought. A rule having been obtained to show cause why <>°^ ^ ^^* ^'
the defendant should not be allowed his costs under the 43 Geo. 3, c. 46,
J. JermM showed cause. — The defendant is not entided to have this rule
absolute ; the case of Keene v. Dceble (a) is an authority against it. This
case^ it is true, differs from that, inasmuch as here a verdict has been taken,
but still it is within the rule there laid down, as, besides the cause itself, ail
matters in difference were referred, and it is clear from the award that there
were other matters in difference on which the arbitrator decided. The case
of TtoHpsQM V. Atkmton (6), is precisely similar to the present. Lord 2W
itrim there says, ** One matter in difference between the parties at the time
of the submission, was, whether the defendant was or was not entitled to a
compensation for the injury he had sustained in consequence of having been -
hsid to bail for 179/., when a much less sum was due from him to the
plaintiff." So here it was also a matter in difference between the parties,
and the defendant is not entitled to this rule. — He then contended, that on
the merits, also^ the rule ought not to be made absolute*
Wdsb^f amiran — ^The case of Keene v. Deeble is entirely distinguishable
from the present, as in that case no verdict was taken. The case of Thomp*
(«)3fiani«& Crest. 491; 5]>owL&Ryl. (6) 6 Barn. & Cress. 193; 9 Dowl. &
»i. Ryl. 347.
120 TERM REPORTS in the KING'S BENCH.
Bail Court, *^'* ^' ^^fnnson is also distinguishable. There, the award stated a certain
v^>^ sum to be due on a balance of accounts. Here the arbitrator, by his award,
Jones jjag made a distinct adjudication as to the other matters in difference between
Jeuu. '^® parties which were not included in the action referred. As to the sum
awarded in that cause, therefore, the awards stand precisely in tlie situation
of a verdict. The arbitrator in this case not having awarded any compensa-
tion to the defendant for the arrest, although, perhaps, he might have done
so as a matter in difference between the parties, does not therefore prevent
the defendant having this rule made absolute. — He also contended, that on
the merits, the rule should be made absolute.
Cur. adv. tuU.
Coleridge, J., afterwards {June 7th) gave judgment. — This was a motion
for allowing the defendant his costs under the 43 Geo, 3, c. 46. The arrest
had been for 79/. At the trial, the cause was referred, but a verdict was taken
for 100/., to be reduced according to the award. The cause and all matters
were referred ; the costs of the cause to abide the event, and the costs of the
reference to be in the discretion of the arbitrator. The arbitrator awarded
that the verdict should be reduced to 251. lOs. 6(/., over and above 15/.
already paid into Court. On showing cause, it was contended, upon the
authority of Keene v. Deeble and Thompson v. Atkinson, that this was not a
case within the statute. It is obvious, however, that there is a distinction in
principle between those cases and the present, inasmuch as in Keene v.
Dccble no verdict was taken, the money therefore could not be said, in the
words of the statute, to have been recovered: and in the latter, the arbitrator
had taken the arrest without reasonable cause, into his consideration, as a
matter in difference between the parties, and awarded compensation in respect
of it. There arc, indeed, expressions to be found in the judgments in the
former case, which might seem to apply even where a verdict had been taken ;
but none which extend to such a reference and such an award as this.
Here the arbitrator, in the first place, reduces the verdict, and disposes
entirely of the action ; he then adjudicates separately concerning a second
action brought by the plaintiff* against the defendant, deciding that there was
no cause for bringing it, directing it to cease, and the plaintiff to pay the costs ;
and, lastly, he adjudicates on a third claim by the plaintiff on the defendant,
for which no action had been brought, and directs the payment of a sum of
money in respect of it to be made on a future day. The arbitrator, therefore,
has kept the cause distinct from the other matters, and nothing is stated to
show, that in the trial of the cause before him, any medium of proof was re-
sorted to, not available at nisi prius. I cannot then discern any principle upon
which the defendant's rights, under the statute, as to the cause thus dis-
tinctly tried and disposed of, can be affected by the circumstance, that other
matters in difference are at the same time and in the same submission referred
to, and adjudicated on by the same arbitrator. No such consequence appears
to flow as a legal conclusion from such premises, nor can I see any ground
for inferring any agreement on the defendant's part to waive such rights.
But upon the merits it was contended, that this rule should be discharged,
and upon looking through the affidavits, I am of that opinion. It appears,
that before the arbitrator, the plaintiff established every item in hb par-
ticulars of demand, to an amount exceeding that for which the defendant was
TRINITY TERM, 1836. 121
held to bail. The reduction of the verdict was occasioned by the defendant's Bail Court.
establishing a set-off to the amount of nearly 40/. But it appears to me, wn^^^
that the plaintiff neither did know, nor had reason to suspect the existence '^^^^^
of any such demand. In the defendant's affidavit it is not stated, that before Jehu.
the arrest he had ever made any claim on account of it ; in the plaintiff's
affidavit it is positively denied that he ever had ; and it is alleged that he had
settled an account in which the items should have appeared, but did not ; that,
subseqaently to this, he had on several occasions borrowed money of the
plaintiff, and when pressed for payment, been wholly silent as to the present
claim ; and further circumstances are stated with respect to the transaction
out of which the set-off grew, from which it is a reasonable inference that
this claim waa merely an afler-thought.
I am, therefore, of opinion, that the plaintiff, when he arrested the de-
fendant, had a reasonable and probable cause for holding him to bail for the
full sum, and this rule must consequently be discharged.
Rule discharged.
Do£ d. CiiiLDERS V. Roe.
'M'ANSEL moved for judgment against the casual ejector. — The affidavit Rule mUi granted
stated, that the premises had been let by indenture to a person who for judgment
■ 111 I rT»i !•■ •! • /»! "gaiust the casual
had underlet part to another. 1 he part which was m the possession of the cjectur, where
oriffinal lessee was shut up, and a blacksmith, in the neighbourhood, kept the ** tenant in po»-
^ *, , ° * session was keep-
key for the purpose of showing the premises, and letting them for the lessee, ingoutofthe
Many inquiries had been made for the lessee himself, who could not be met Jl^Jv^n ^[^"
with, who was keeping out of the way, and was living out of the jurisdiction on a penon who
of the Court. The declaration and notice had been served on the black- thej,re^is«^**
smith, but the affidavit did not state that it was " the tenant in possession" who service on an an-
had been served in that way. There had been service on the wife of the of tiie premise,
under-tenant on the part of the premises let to him. cannot ^ ~»"»*
* * dered as service
on a joint-tenant*
Mansel submitted, that as to the first tenant,' he was entided to a rule nisi
at least ; and also that the service on the under-tenant made the case come
within the rule, that service on one of two joint-tenants was sufficient, so as
to eDtitle him to a rule absolute.
CoLXRiDOE, J. — The affidavit will not do ; it must state that the deponent
served '* the tenant in possession," by doing so and so. It must be in the right
foim. The under-tenant cannot be considered as a joint-tenant, he is under-
keoant of part only. You may take a rule as to the part in his possession only.
Manidf the next day, renewed his application, on an affidavit, stating the
service on " the tenant in possession," by service on his agent, the blacksmith,
and the Court granted a rule nisi for that part of the premises.
122 TERM REPORTS iv the KING'S BENCH.
Bail Court.
^"^^"^ The King v. The Sheriff of Hertfordshire.
If a sheriff applies O^ ^^^ ^^^ Q^ JoMkuy, a j(. fa. issued on a judgment. On the 15th of
for relief under Jpril, the sheriff was ruled to return the writ, and on the SOthy which
Act, andoD hw- ^^ EostcT Term last, the sheriff obtained a rule nin, under the Interpleader
log tb^ caMs iiis Act, 1 & ^ WilL 4, e. 58, which, on coming on to be heard on the 7th of
he has afterwards' M(iy» was discharged (a). On the same day the plaintifi*'8 attorney aeardied
a reasonable time the oflScc to sec if the sheriff had made any return to the Ji.fa., and finding
to make las re- a .r' ^f ^ — — o
turn ; and there- he had uot, the Same day obtained an attachment against him for not doing
Ibu^ed^?' so (5). The 8th of il% was a Svnday, and on the 9th, which was the last
him the same day day of the term, the sheriff made a return of wdla bona. A rule to show
reti^lto fare^ ^ cause why that attachment should not be set aside, having been obtained on
gviv. the first day of this term,
C. Turner afterwards showed cause. — This attachment was regular. The
sheriff ought to have made his return, notwithstanding the rule obtained
under the Interpleader Act. He has no right to delay and take the chance
of the decision of the Court imder that act. It would be dangerous to give
him the opportunity to shape his return according to that decision. Here
the sheriff has returned nuUa hona^ which is inconsistent with his application
under the Interpleader Act, when he allowed he had made a seizure. The
consequence of this return is, that the execution creditor has to contend
with the sheriff the truth of that return. The only ground on which this
attachment can be discharged, is on the ground that the sheriff had the same
time to make his return after the interpleader rule was discbariged, that he had
at first. The case of St. Hanlaire v. Byam (c), is an authority against that
position. The case of Green v. Glassbrook ((f), is an authority to show, that
when a party chooses to elect to take the benefit of a statute, he must take it
with all its consequences. The consequence of the sheriff applying in this
case under the Interpleader Act, is, that on the rule being discharged, he is
liable to, an attachment. At the time the sheriff applied for this rule, he had
already made his return, yet he concealed that fact from the Court, as well
as what the nature of that return was. At any rate the attachment should
only be set aside on payment of costs.
J. Bayley, contrd, was stopped by the Court.
CoLERiDOE, J. — I have no difficulty in this case, as it is quite clear, when
the facts are looked at, that this rule must be made absolute. This rule has
grown out of an application by the sheriff to the Court under the Inter-
pleader Act. That application assumes that the sheriff has made no return,
and now the ground on which this rule is resisted is, that the sheriff is bound
to make a return while that application is pending. If he does so, it is incon-
sistent with his application. It is not to be expected he should do so, and If
not, he must have a reasonable time to make his return after the application
(a) See the case Lathmar ▼. Claringbold, (c) 4 Barn. & Cress. 970.
ante, 87. (d) 1 Hodges, 27 j 1 Bing. N. C. 617 ;
(b) See the Rule, M. T. 32 Geo. 3, 1 Scott, 402.
4 Term Rep. 496.
TRINITY TERM, 1836. 123
is disposed of. If, then, he is allowed to do that, he cannot be bound to Bail Court.
make his return the same day. That skNie is sufBctent cause to make this ^^v^
rule absolute, witliout reference to the cases that have been cited. Mr. The Kino
Tumtr has relied on the return of nuUa iono. I have disposed of the point rj^^ sheriff of
of his making some return ; then as to the particular nature of this return. Hertford-
The sheriff came to the Court for protection under the Interpleader Act, ^^^^^
nd he was refuaed that protection under the circumstances of the case, but
that does not take away from him bis right to decide for himself, and to
lelani nulla bona or levari feci. The return of nulla bona is not inconsistent
wkh what he has said when applying to the Court* namely, tliat he has seized
goods under the Jieri faciei^ which were in the possession of the defendant.
The sheriff has made no election« but has only endeavoured to get the pro*
tectioB of this Court. The rule must be absolute for setting aside the
attachment, and without the condition of the payment of costs, as the attach-
nent nerer ought to have issued.
Rule absolute.
Lawrence t>. Mathews and others.
^HB defendants were sued by the plaintiff as partners and adventurers in 1° an action in
a mine. The first count of the declaration was in an action on the case, stmcuonhi «>i.
and stated an obstruction by the defendants in collectini? the tolls and dues lecUugtoiisof a
-, . . , , . /» 1 mt mine, with a count
of a tm mme ; the second oount was a count m trover for the ore. The ia trover for the
defoodants had paid the dues in question to three different lords for ore, against the
*■ * adventurers wbo
some time past, and the plaintiff made a claim to part of the share of one^ ciaimedaninterest
for which ^e action was brought. In last term, a rule was obtained under c^.^^^'HJjto tto^
the Interpleader Act, 1 & 5i WUL 4, c. 58, s. 1, by the defendants, calling toils :--2Mtf, that
on WUHam Carlyon, the lord to whom they had been accustomed to pay TOt«BUrt^"ln
the share claimed, to appear and state the nature of his claim. The application by Uie
aflUayit on which the rule was granted stated, that tlie defendants were ^f^ interpleader
sued as partners and adventurers in the mine, and that they had worked it ^^^
since the year 1850 ; it also stated the different shares they had paid to the
different lords, and some notices of claims made by the plaintiff to part of
the tolls, and of the ore ; it also stated that the defendants claimed no
interest in the tolls or dues, but did not state that they claimed no interest
in the ore.
W, C. Rome, for the plaintiff, this tern showed cause.-*-This is not a case
within the act, 1 & 2 WW,, 4, c. 58, s. 1, as it does not extend to an action
OB the case, the only forms of action are assumpsit, debt, detinue, and trover.
It k also clear that the defendant has an interest in the ore ; it is stated he
is one of the adventurers, and has worked the mine, and the affidavit does
■ot state he has no interest in the ore raised. He was then stopped by the
Coort.
JariKne, for the defendant. — If the Court does not grant this rule, it will
Ve inqpoisible for the defendant to have the benefit of the statute in an
aelioB of trover, as the plaintiff will always be at liberty to add a count in
case. There is no case to be found analogous to the present, but it is sub-
124 TERM REPORTS in the KING« BENCH.
Bail Court, niittedi that the Court, having jurisdiction over the count in trover, may
dispose of the whole of the case under the act.
Lawrence
Mathews. Montague Smith, for William Carlyon,
Coleridge, J. — How can I interfere unless I can dispose of the whole of
the demand ? The words of the act are, that upon application " in any
action of assumpsit, debt, detinue, or trover, such application bemg made after
declaration and before plea, by affidavit or otherwise, showing that such
defendant does not claim any Interest in the subject-matter of the suit, but
that the right thereto is claimed, or supposed to belong to some third party,"
&c. The affidavit on which the motion is made ought, therefore, to go to
the whole matter of the suit. All that the defendants here say is, that they do
not care to whom they pay the toll, but they do claim an interest in the ore,
so that there is this difficulty, that as to the count in case, over which the
Court has no power, they entirely disclaim all interest ; but as to the count
in trover, over which the Court has power, they do claim an interest. The
rule must be discharged, but without costs, as it is a new point ; and I cannot
say it has been vexatiously brought here, though I have no doubt the rule
cannot be sustained.
Rule discharged.
Do£ d. Ross V. Roe.
Rule granted to g^HANNEL moved for a rule to show cause why service of a declaration in
senTcc'^ a decja- ejectment on the clerk of the Grand Junction Canal Company, should not
raUou in eject- be good scrvice. There is no provision in the act incorporating that Company
oTan incor^raud enabling them to sue in the name of tlieir clerk, or declaring that service of
pompany, should a declaration in ejectment on him should be good. The service was on the
not be good ser- ,, \ ^ t •» i • i i
vice. Clerk on the Company s premises^ but not on the premises sought to be
recovered. Doe v. Roe (a), is a case nearly in point.
Coleridge, J. — You may take a rule, nisi.
(a) 1 Dowl. P. C. 23.
The Kino v. Rogers and others^
of SS'tS^udlr X^^^ ^^ * ^^^^ calling on John Duckett and John Rogers, the bail for one
statutes & 6 rr.4 of the defendants, Francis Rogers, to show cause why the recognizances
^vi^of^iSdirt- ®^ ^^^* entered into under the statute 5 & 6 JV. ^ M. c. II, on the in-
ment, cannot be dictmcnt being tcmovcd by certiorari into this Court, should not be
ftn^nthalJing*' estreated, the defendant having been convicted of the offence charged. At
agreed with the the trial it was agreed that defendant should plead guilty to the indictment,
^!!!ut^and sublet and should submit to a nominal fine, but should not be brought up to be
to a nominal fine, gug^j until the dccision of a certain action of replevin. The judirment was
without the know- i. i i • ^ . i /. .....
ledge of the bau. accorduigly entered up in that interlocutory sort of way m which it now
stood. The bail were not parties to the agreement.
TRINITY TERM, 1836- 125
BiUt showed cause, and contended that there was no final judgment, ^^^i Court.
snd that, therefore, the application was too soon. He cited Rex v. v^/^
Tuner (a). The Kino
Wkaielty^ eontrdf contended that the judgment entered was sufficient to
entitle him to this rule. He also contended^ that the case of The King y.
Ttmur did not apply.
Coi^MBOE, J. — I understand the hail were not parties to the arrangement,
dierefore, without deciding the other point, I think on these facts the re-
cognizances cannot he estreated. The defendant, without the privity of his
bail, agreed to plead guilty, and to submit to a nominal fine : under those
circumstances the recognizances cannot be estreated. The rule must also
be discharged with costs, as these proceedings are premature, no final
judgment being entered, and it not being therefore a complete record, and
also as there is nothing to show that the agreement was made with the con-
tent of the bail (6).
Rule discharged with costs.
(a) 15 East, 570. (6) See The King v. Rawton, 2 Barn. & Cress. 59Q.
V.
ROGEBS.
Fenton v. Anstice.
•PHE defendant in this case had appeared by attorney. On the 25th of ^.^'^^^^"j
jlfnrU a declaration in scire facias on a judgment was delivered, without uouce to plead is'
a notice to plead indorsed on it. On the 30th a rule to plead was obtained, J^^J^ SITwZuff^
and on the 16th of May a plea was demanded. On the 19th judgment was can sign judgment
ngned for want of a plea, and on the evening of the 20th a plea was '»^^'^'«f«P»«"-
deliYered at the attorney's office. No objection was then made, although
judgment had already been signed. Easter Term began on the 15th of
April and ended on the 9th of May. A rule having been obtained to show
cause why the judgment should not be set aside for irregularity with
costs,
Addison showed cause. — Neither by the old practice, nor by the practice
as now altered, is a notice to plead necessary. It is certainly laid down in
Tidd^s Practice (c), that where a declaration is delivered absolutely afier
appearance, a notice to plead must be given, but he refers as authority to
t rule of 5 & 6 Geo, 2. On reference to that rule it appears, that at that
time a defendant might imparl until the next term, and that the object of
that nde was to diminish the defendant's power to imparl in particular cases,
and not to require a notice to plead in all cases. This rule is not ap-
plicable to the present practice, which is now regulated by the rule of
Trimty Term, 1 JVill, 4, s. 7 (d), and the Uniformity of Process Act, 2 & 3
Wm, 4, c. 39, imparlances being now entirely done away with. In Iliffer-
man t. LangeUe (e), the notice to plead was left in blank, and the Court
said that the defendant was bound to take notice of the practice of the Court.
l:
0 p. 473, 9di edit. (e) 2 Bos. & Pul. 363.
O 1 l>«wU P. C. 104.
126
TERM REPORTS iv thb KING'S BENCH.
BailCawrt.
FXNTON
V.
Ansticb.
That case shows that a notice to plead is preeautioiiary only. In this case
there was a rule to plead, and it was the defendant's duty to search for that
rule. The defendant cannot say he was taken by surprise, as there was
a demand of plea three days before judgment was signed. It will be
contended that he ought to have been allowed four days to plead after that
demand, bnt that is not the case. — [^Coleridge, J.-^Accordhfig to your argu-
ment, what are the cases in which it is now requisite to give notice to
plead ?] — In no case, according to the present practice. — [Coleridge^ J. — Is
not the fair meaning of the decision in Hifferman v. Langelk, merely that if
a notice to plead is given with the time in blank, the defendant is bound to
take notice of what that time is ?] — That decision, it is submitted^ goes to a
greater extent. The case of Heath v. Rose (a), cannot be relied on by the
other side, as there the declaration was delivered conditionally, and that case,
moreover, occurred before imparlances were done away with.
^ag%) conird. — The books of practice all lay it down that there must be
a notice to plead, and the rule of Trinity Term, 1 fTiU. 4, s. 7, does not
alter that practice. A notice to plead is now indeed the more necessary, as
that rule takes away imparlances. If the plaintiff intended that the rule to
plead should take the place of a notice to plead, he should have allowed the
defendant four days' time afler the demand of plea, and he was not entitled
to sign judgment at the end of twenty-four hours. The case of Heath v.
Rose, was a case precisely like the present. — [Coleridge, J. — There the
declaration was delivered conditionalliff which is a material distinction.] The
effect of not giving a notice to plead will be to give a plaintiff the opportunity
to snatch a judgment, as the rule to plead is not served, but only filed.
CoLERiDOE, J. — I think that this case, if it had occurred before the new
rules, would have been irregular. The practice is laid down by Mr. Tidd
to be so. Now, without reference to the new rules, if the demand of plea
was to operate as a notice to plead, there should then have been the same
time allowed as afler a notice to plead. The case of H^emum v. Langdk
only shows that if the plaintiff* gives a notice to plead, but omits to mention
within what time, the defendant is bound to take notice of the practice of the
Court as to the time. Then comes the question, do the new rules make any
difference in the practice ? It seems to me that the arguments for making
this rule absolute are sound. The rule in terms does not do away with the
necessity for a notice to plead, and on principle also I do not see that a notice
to plead is rendered unnecessary. It is rather a reason why the defendant
ought to have a notice to plead, that imparlances are now taken away. The
judgment therefore is irregular, and must be set aside.
Rule absolute.
(a) 2 New Rep. 323.
^HI
TRINITY TERM, 1836. 127
Aril Court,
Gyde v. Boucher. *
S was an action brought by an attorney to recover his bill, for buai- ^^ ^^ ^^^d by an
_,_. o ^ til iiiii •ttoraey, on a bill
nets done by ban as an attorney ; and when the cause was called on for of costs, a verdict
at the last Gkmcester Assizes, a verdict was taken for the plaintiff for ^"^ ^^° ^y ^®°'
mm » Msnty and the mat-
S0/.» subject to the award of a person to whom the cause, and all matters in urvas referred,
difference, were referred. The costs of the cause were to abide the event, togeu.er wUh aii
' , . matters in differ-
aid the covis of the reference were to be in the discretion of the arbitrator, ence. Another
The defendant had been arrested for the sum of 28/. Ut. Bd. as the baknce ^ll^^'au'!^^^
daimed to be due ; but on the reference, the plaintiff, besides that claim, fore the arbitrator.
Bade another chum on a second bill, amounting to 7L 19f. \d» The arbitra- ^'thuu!ev^ct
tOTy by his award, recited the order of reference, and proceeded thus : '' Now should be entered
I, the said arbitrator, having taken into consideration the matters so referred ud'the defendant
to me/' &c. He then directed the verdict to be entered for the plaintiff for •honid pay the
211. 16«. 9d. instead of the nominal sum of 50/. ; and then, without making ence; without
mention of any other matters referred, he directed the defendant to pay the **^'°< that that
' - * "^ sum was for the
eosts of the reference and of the award. A rule was obtained to show first bm of costs,
cause why the award should not be set aside, on the ground that the ^'emi^^**of ule
arbitrator had either included part of the claim of 7/. 19«. !(/., which was second bin :—
not a matter in the cause, in the sum of 21/. 16«. 5</., for which he had ^^Hwutod.
directed the verdict to be entered, or else had made no award at all as to
that claim, and therefore the award was not final*
R* V» Richmrdi showed cause.
T. Dewman iVhatley^ contrd, cited Hutchinson v. Blackfvell{a), Donlan v.
Brett (ft), and Dunn v. Murray (c).
Cur, adv, vult,
Coleridge, J., afterwards {June 13th) gave judgment.— This was a motion
to set aside an award, made under an order of nisi prius, by which the cause
and all matters in difference were referred. The defendant had been arrested
fiyr the sum of S8/. \2s. 5d,, which was claimed as the balance due on a bill
previously delivered. At the reference, the plaintiff produced a second bill,
amounting to 7/. 195. Id,, of which the greater number of items bore date
previously to the bringing of the action ; but some few were for work alleged
to have been done subsequently. This second bill was investigated on the
reference, aad the arbitrator directed a verdict to be entered for the plaintiff
bone entire sum of 21/. lOs. Sd, ; and it was objected, that either he had
exceeded his authority by including some portion of the latter claim, which
was only a matter in difference, in the sum for which he had entered the
Terdict ; or that he had wholly omitted to make any award upon it, and that,
as regarded this claim, his award was not final. I am of opinion that this
role must be made absolute. By the order of reference, the arbitrator was
^ to take into consideration the cause, and all matters in difference ; and if
he should find that the plaintiff was entitled to recover any damages in the
(«) 8 Biag. 331. (c) 4 Mann. U RyL 571.
(*)2Adol.&£L344; 4N.&fit,b54.
128
TERM REPORTS in the KING'S BENCH,
Bail Court*
Gyde
V.
BOVCIIER.
said cause, then he was to ascertain the true amount thereof, and to direct a
verdict to be entered for such sum as he should find to be really due,
instead of the nominal damages of 50^. ; and he was to order and determine
what he should think fit to be done by the parties respecting the matter in
dispute :" the costs of the cause were to abide the event, and the costs of
the reference and award to be in the arbitrator's discretion. This being the
order of reference, the arbitrator, by his award made of and concerning the
matters referred, "Jinds and ascertains that the plaintiff is entitled to recover
damages to the amount of 21/. I65. Sd, ; and directs that a x>erdkct shall be
entered for the said sum of 21/. 16s. 3(/., instead of the said nominal
damages.*' Comparing these words with those of the order, I think they
must be taken to be a finding only as to the sum claimed in the cause ; and
if so, there is no finding as to the matters in difference, which yet were
investigated before the arbitrator, unless by directing that the defendant
should pay the costs of the reference and award, or, by his silence, the
arbitrator can be intended to have found that nothing was due in respect of
these matters. But this intendment is unreasonable and unfounded ; and by
the uncertainty in which the arbitrator has lefl this matter^ he has subjected
the defendant to real inconvenience. As to the cause, if indeed the sum of
21/. 16f. 3(/. be made up in any part of the latter claim, he is prejudiced in
any motion which he might make for costs, under the 43 Geo, 3, having been
held to bail for a larger sum (a). As to the matters themselves, he has not
that protection against a second action, which it was one object of the refer-
ence to give him. On these grounds I think this award must be set aside.
Rule absolute.
(a) See the case of Jonei v. Jeftu, ante, p. 1 19.
Barratt v. James.
A defendant can-
not justify bail in
vacation, under
110.4&1 W,^,
c. 70, 8. 12, not
having been no*
ticed to do so by
tlie plaintiff, un-
der tlie rule H,
T. 2 »r. 4, I. 17.
t\ N the 6th of May^ bail in this case was put in. On the 7th they were
excepted to ; and on the 9th, which was the last day of £as/^Term, the
defendant gave notice that the bail would justify on the 11th before a Judge
at Chambers. They did accordingly justify, and were allowed, no opposition
being made. A rule was this term obtained to show cause why the justifica-
tion, and rule for the allowance of the bail, should not be set aside for irre-
gularity, with costs.
Humfrey showed cause. — The question here is, whether bail being ex-
cepted to, cannot now justify at Chambers, though not called on by the
plaintiff to do so. By the statute 11 Geo, 4 and 1 fVilL 4, c. 70, s. 12, it
is enacted, that " bail may be justified before a Judge in Chambers, or in
some other convenient place, to be by him appointed, as well in Term as in
vacation, and whether the defendant be actually in custody or not." It is on
that enactment that the bail have justified, which they have a right to do if
they think proper. The rule of H. T. 2 W, 4, 1. 17 (b\ that if bail "are
excepted to in vacation, and the notice of exception requires them to justify
(6) IDowl. P.C. 186.
TRINITY TERM, 1836. 129
before a judge, the bafl shall justify within four days from the time of such ^ail Court.
notice, otherwise on the first day of the ensuing term," will be relied on by ^^v^^
the other side. This rule, however, is at variance with the act of 11 Geo. 4 Babratt
ind 1 WilL 4, unless it be construed in the following way : — The act gives ^*
power to the defendant to justify before a judge in vacation, which is a thing
for his benefit ; then the rule gives the plaintiff power to compel the
defendant to justify bail before a judge in vacation, which he before could
not be compelled to do ; for otherwise, as a matter of right, the defendant
has until the first day of the following term. But if the plaintiff does not
force the defendant to justify under that rule, he has a right to go on until
the first day of the next term. The rule, however, does not take away the
defendant's right to justify under the statute, if he thinks proper. There
wiU, therefore, be three different states of circumstances : first, the plaintiff
may call on the defendant to justify within four days, under the rule ; se-
condly, if he does not, the defendant has until the first day of the next term ;
but thirdly, the defendant may, if he chooses, justify under the act. I'here
is also another answer to this application, as the rule of H. T. 2 W, 4, applies
only where bail are excepted to in vacation ; but in this case they were
excepted to in term.
JrchboUf contrd. — Before the statute 11 Geo. 4 and 1 Will. 4, c. 70, s. 12,
baQ could not be justified at Chambers unless by consent, except in the case
otprisaners^ in vacation. That enactment was to remedy that practice, and
relates to the place where bail may be justified. The rule H. T. 2 IV. 4, I.
17, relates to the time when bail may be justified ; and the rule, therefore, is
not at variance with the act of parliament. Now how does the rule alter the
previous practice, by which bail could not be justified until the first day of
the next term ? It now has one exception to that practice, namely, when
the notice of exception requires the bail to justify before a judge. If, there-
fore, notice is not given, the bail cannot be justified until the first day of the
next term. In this case notice was not given by the plaintiff; and the irre-
gularity complained of is, not that bail was justified at Chambers, but that
they justified in vacation* This exception to the bail was moreover made in
term time, and not in vacation, as referred to by the rule of ^. T. 2 W. 4.
That rule« therefore, does not apply, and the case stands on the old practice,
namely, that where exception was made to bail so late in the term that there
was not time to justify in the term, there could be no justification until the
first day of the next term.
CoLKRiooE, J. — I am inclined to think that Mr. ArchboUTs view of the
Rnle of Court, and the Act of Parliament, is the true one in order to recon-
cile them ; and that the one applies to the time when, under particular
drenmstanoes, the justification may take place; and the other to the
{laoe wherCi under all circumstances. This rule must, therefore, be made
absolute.
Rule absolute.
TOL. II, K
130 TERM REPORTS in thb KING'S BENCH.
Bail Court,
Doe d. Butler v. Roe,
In ejectment. ¥^ July, 1835, an action of ejectment had been brought, which the land-
poaaession exe. lord of the premises defended, and which was afterwards dropped. In
eutod, and an /fpril last the present action was commenced for the same property, and the
action for mesne * * ./.i-ii.i'/»r
profits com- tenants who were served, gave the copies of the declaration to the wife of
SSrtit llde ^^® landlord, he being at the time out. She, thinking they concerned the
the judgment and former actiou, and were of no consequence, locked them up, and on the
mrot*of*aU Uir'^ retum of her husband forgot to give them to him. Judgment was in con-
costs Incurred at sequcncc signed against the casual ejector, and a writ of possession was
the iandiord,%ho wsucd, under which the lessor of the plaintiff was put in possession, and the
by a mistake had former tenants attorned to him. He then commenced an action for the
of the declaration, Hicsne profits against the landlord, which was still pending. A rule was
which had been ^jjja ^^m obtained by the landlord to set aside the judgment and writ of
served on hfo . "^ jo
tenants, delivered possessiou, on the payment of costs, and to allow the landlord to appear and
^ *»^- defend the ejectment.
Humfrey showed cause. — It is not stated in the afHdavits on which this
rule was obtained, that there has been any collusion between the lessor of
the plaintiff and the tenants in possession. The case of Goodtillc v. Bad-
title (a), is an authority to show that that is necessary. The subsequent
cases of Doe d. Ingram v. Roe{h\ and Doe d. Shaw v. Roe(e), certainly
appear in favour of this application ; but in this case it is only sworn that
the landlord had a good defence to the ejectment on the merits. It should
have been sworn, that the deponent believed the lessor of the plaintiff had
no good title. The landlord has his remedy by bringing another eject-
ment.
Cooke, contrd, was stopped by the Court.
Coleridge, J. — I think, that on payment of all the costs incurred in the
ejectment and in the action for mesne profits, that this rule may be made
absolute.
Rule absolute accordingly.
(a) 4 Taunt 820. (fc) 11 Price, 507. (c) 13 Price, 260.
Lloyd and another v. Kent,
onUie defendant O^ ^^^ ^^^^ ^pril last, the defendant in this cause was arrested, and an
being arrested, he agreement was made between the defendant and the plaintiffs' attornies,
judge's order to And an Order of a judge at chambers was consented to, that the proceedings
stay the proceed- ghould be Stayed for One month, at the end of which time the plaintiff should
incs for a time, , ,
at the end of be at liberty to sign judgment for 60/. with interest and costs ; and this was
tiffwas^tobert ^ ^^ without prejudice to the plaintiffs' right to bail. Judgment was not
liberty to sign
judgment : the plaintiff cannot afterwards tax costs without giving notire, as if the defendant had not
appeared. Bvt not having done so, tlie Court will not set aside the judgment and execution as irregular.
TRINITY TERM, 1836.
signed untfl six weeks after this order was consented to, and the plaintiff
proceeded to tax bis costs, without giving notice of the taxation to the
defendant. A rule was in consequence obtained for setting aside the taxa-
tion of costs, the judgment, and the Jieri facias, for irregularity. The affi-
davits in opposition stated that the usual costs only were allowed.
Skee showed cause. — Notice of taxation is not necessary where the
defendant has not appeared. The rule of Trinity Term, 1 Will. 4, 1 S (a),
requires one day's notice of taxation of costs ; but by the rule of Hilary
Term, 4 Will. 4, 17 (b), it is declared, that where the defendant has not
iqppeared, it is not necessary to give notice of taxation. Here the defendant
was arrested, and has not appeared either in person or by attorney. It can-
not be contended that the agreement made between the parties, and the
order consented to, amounts to an appearance. Even should the Court be
of a eontrary opinion, and that there has been some irregularity, the case of
Perry v. Turner (c) is an authority to show that the Court will refer it back
to the master to see if the defendant has been damaged, and will not make
this rule absolute.
MoBseit conird, — The rule of Triniiy Term, 1 W. 4, is express that there
most be notice of taxation. The rule of Hilary Term, 4 Will. 4, 17, con-
tains an exception, and the question is, whether in this case there has been
an appearance, or what is tantamount. The agreement was in fact an agree-
ment that the defendant should be considered in Court, and the plaintiff
himself treated it as such when he signed Judgment. The plaintiff will not
be prejudiced by this rule being made absolute, except so far as regards
any excess in the taxation.
Coleridge, J. — I have no doubt this case is not within the rule of
Hilary Term, 4 Will. 4,17. I think when that rule is examined it cannot
be said to apply to a case where the parties go before a judge at chambers
and agree that judgment should be signed on a certain day, and that it is
impossible afler that for the plaintiff to say that the defendant has not
appeared. But after the case of Perry v. Turner^ I cannot treat this as an
irregularity, but must send it back to the master to see if the defendant is
prejudiced. I think the plaintiff was irregular in not giving notice of the
taxation, but I shall not set aside the judgment ; and therefore, even if
there is no reduction in the taxation, the defendant must not pay the costs
of this rule. There must, therefore, be a special order that this rule be
discharged on the parties going before the master to see if the defendant is
prejudiced. If any reduction is made^ the plaintiff is to pay the costs of
this rule ; but if no reduction is made, then there will be no costs on either
side.
Rule accordingly.
131
Llotd
Kent.
(a) 1 Dowl. P. C. irs.
(Jb) 2 Dowl. P. C. 308.
89.
(c) 1 Dowl. P. C. 300 ; 2 Crorop. fit Jerv.
K t
130 TERM REPORTS in thb KING'S BENCH.
Bait Court.
Doe rf. Butler v. Roe,
inejectraent, w^ JulVf 1835, an action of ejectment had been brought, which the land-
posMtsion «xe. lord of the premises defended, and which was afterwards dropped. In
cutod, and an /ipril last the present action was commenced for the same property, and the
profits com- tenants who were served, gave the copies of the declaration to the wife of
SSrtit'llde *^^ landlord, he being at the time out. She, thinking they concerned the
the judgment and former action, and were of no consequence, locked them up, and on the
mrot*of*aUUir'^ rctum of her husband forgot to give them to him. Judgment was in con-
costs Incurred at sequcucc signed against the casual ejector, and a writ of possession was
the iandiord,%ho iMued, undcr which the lessor of the plaintiff was put in possession, and the
by a mistake had former tenants attomcd to him. He then commenced an action for the
of the declaration, mesne profits against the landlord, which was still pending. A rule was
which had been ^jjja ^^m obtained by the landlord to set aside the judgment and writ of
served on hfo . "^ jo
tenants, delivered possession, on the payment of costs, and to allow the landlord to appear and
to him. defend the ejectment.
Humfrey showed cause. — It is not stated in the affidavits on which this
rule was obtained, that there has been any collusion between the lessor of
the plaintiff and the tenants in possession. The case of Goodtitlc v. Bad-
title (a), is an authority to show that that is necessary. The subsequent
cases of Doe d. Ingram v. Roe (A), and Doe d. Shaw v. Roe {e\ certainly
appear in favour of this application ; but in this case it is only sworn that
the landlord had a good defence to the ejectment on the merits. It should
have been sworn, that the deponent believed the lessor of the plaintiff had
no good title. The landlord has his remedy by bringing another eject-
ment.
Cooke, conird, was stopped by the Court.
Coleridge, J. — I think, that on payment of all the costs incurred in the
ejectment and in the action for mesne profits, that this rule may be made
absolute.
Rule absolute accordingly.
(a) 4 Taunt. 820, (6) 11 Price, 507. (c) 13 Price, 260.
Lloyd and another v. Kent,
onUie defendant O^ ^^^ ^^^^ ^pTtl last, the defendant in this cause was arrested, and an
being arrested, be agreement was made between the defendant and the plaintiffs* attornies,
judge's order to &nd an ordcr of a judge at chambers was consented to, that the proceedings
stay the proceed- should be Stayed for one month, at the end of which time the plaintiff should
ings for a time, ...
at the end of be at liberty to sign judgment for 60/. with interest and costs ; and this was
tiffwas^tobcL't '^ ^^ without prejudice to the plaintiffs' right to bail. Judgment was not
liberty to sign
judgment : the plaintiff cannot afterwards tax costs without giving notice-, ns if Uie derendant had not
appeared. But uot having done so, tlie Court will not set aside the judgment and execution as irregular.
TRINITY TERM, I8S6. 131
signed until six weeks after this order was consented to, and the plaintiff ^ail Court,
proceeded to tax his costs, without giving notice of the taxation to the >^/^^
defendant. A rule was in consequence obtained for setting aside the taxa- Lloyd
tion of costs, the judgment, and the Jieri facias , for irregularity. The affi- Kent.
davits in opposition stated that the usual costs only were allowed.
Shee showed cause. — Notice of taxation is not necessary where the
defendant has not appeared. The rule of Triniiy Term, 1 Will. 4, 12(a),
requires one day's notice of taxation of costs ; but by the rule of Hilary
Term, 4 Will. 4, 17 (6), it is declared, that where the defendant has not
appeared, it is not necessary to give notice of taxation. Here the defendant
was arrested, and has not appeared either in person or by attorney. It can-
not be contended that the agreement made between the parties, and the
order consented to, amounts to an appearance. Even should the Court be
of a contrary opinion, and that there has been some irregularity, the case of
Perty v. Turner (c) is an authority to show that the Court will refer it back
to the master to see if the defendant has been damaged, and will not make
this rule absolute.
Matueii contrd, — The rule of Trmiiy Term, 1 W. 4, is express that there
must be notice of taxation. The rule of Hilary Term, 4 WiU. 4, 17, con-
tains an exception, and the question is, whether in this case there has been
an appearance, or what is tantamount. The agreement was in fact an agree-
ment that the defendant should be considered in Court, and the plaintiff
himself treated it as such when he signed judgment. The plaintiff will not
be prejudiced by this rule being made absolute, except so far as regards
any excess in the taxation.
Coleridge, J. — I have no doubt this case is not within the rule of
Hilary Term, 4 H^IL 4,17. I think when that rule is examined it cannot
be said to apply to a case where the parties go before a judge at chambers
and agree that judgment should be signed on a certain day, and that it is
impossible after that for the plaintiff to say that the defendant has not
appeared. But after the case of Perry v. Turner, I cannot treat this as an
irregularity, but must send it back to the master to see if the defendant is
prejudiced. I think the plaintiff was irregular in not giving notice of the
taxation, but I shall not set aside the judgment ; and therefore, even if
there is no reduction in the taxation, the defendant must not pay the costs
of this rule. There must, therefore, be a special order that this rule be
discharged on the parties going before the master to see if the defendant is
prejudiced. If any reduction is made, the plaintiff is to pay the costs of
this rule ; but if no reduction is made, then there will be no costs on either
side.
Rule accordingly.
(a) 1 Dowl. P. C. irs. (r) 1 Dowl. P. C. 300 j 2 Crorop. & Jenr.
lb) 2 Dowl. P. C. 308. 89.
Kt
130 TERM REPORTS in thb KING'S BENCH.
BailCciirt,
Doe d. Butler v. Roe,
In ejectment. ¥^ JJ^ly^ 1835, an action of ejectment had been brought, which the land-
poMeMion exe- lord of the pTcmises defended, and which was afterwards dropped. In
*^'^** *° ^pril last the present action was commenced for the same property, and the
action for mesne * * ./.i^i-iL-i*^
profits com- tenants who were served, gave the copies of the declaration to the wife of
SSrtit^llde '^® landlord, he being at the time out. She, thinking they concerned the
the judgment and former action, and were of no consequence, locked them up, and on the
mrat*of*airuir^ retum of her husband forgot to give them to him. Judgment was in con-
costs incurred at sequeucc signed against the casual ejector, and a writ of possession was
the iandiofd,%ho issucd. Under which the lessor of the plaintiff was put in possession, and the
by a mistaice had former tenants attorned to him. He then commenced an action for the
of the dedara^n, mesuc profits against the landlord, which was still pending. A rule was
which had been tjjjg ^^m obtained by the landlord to set aside the judimient and writ of
served on hfo . "^ •» o
tenants, delivered possession, on the payment of costs, and to allow the landlord to appear and
to him. defend the ejectment.
Humfrey showed cause. — It is not stated in the affidavits on which this
rule was obtained, that there lias been any collusion between the lessor of
the plaintiff and the tenants in possession. The case of OoodtUle v. Bad-
title (a), is an authority to show that that is necessary. The subsequent
cases of Doe d. Ingram v. Ro€(h\ and Doe d. Shaw v. Roe(e)f certainly
appear in favour of this application ; but in this case it is only sworn that
the landlord had a good defence to the ejectment on the merits. It should
have been sworn, that the deponent believed the lessor of the plaintiff had
no good title. The landlord has his remedy by bringing another eject-
ment.
Cooke, contrdi was stopped by the Court.
Coleridge, J. — I think, that on payment of all the costs incurred in the
ejectment and in the action for mesne profits, that this rule may be made
absolute.
Rule absolute accordingly.
(a) 4 Taunt 820. (6) 11 Price, 607. (c) 13 Price, 26Q,
Lloyd and another v. Kent,
onUie defendant O^ ^^^ ^^^^ ^pril last, the defendant in this cause was arrested, and an
being arrested, he agreement was made between the defendant and the plaintiffs* attomiea,
judge's order to and an Order of a judge at chambers was consented to, that the proceedings
f^^fol* ^^^' should be stayed for one month, at the end of which time the plaintiff should
at the end of ' be at liberty to sign judgment for 60/. with interest and costs ; and this was
affm'tobea" '® ^^ without prejudice to the plaintiffs' right to bail. Judgment was not
liberty to sign
judgment : the plaintiff cannot afterwards tax costs witliout giving notice, as if the defendant had not
appeared. Bvt not having done so, tlie Court will not set aside the judgment and execution as irregular.
TRINITY TERM, 1836.
s^ed until six weeks afler this order was consented to, and the plaintiff
proceeded to tax his costs, without giving notice of the taxation to the
defendant. A rule was in consequence obtained for setting aside the taxa-
tion of costs, the judgment, and the Jieri facias, for irregularity. The affi-
dafits in opposition stated that the usual costs only were allowed.
Shee showed cause. — Notice of taxation is not necessary where the
defendant has not appeared. The rule of TrinUy Term, 1 WUl. 4, 1 S (a),
requires one day's notice of taxation of costs ; but by the rule of Hilary
Temiy 4 WUL 4, 17 (6), it is declared, that where the defendant has not
appealed, it is not necessary to give notice of taxation. Here the defendant
was arrested, and has not appeared either in person or by attorney. It can-
not be contended that the agreement made between the parties, and the
order cmisented to, amounts to an appearance. Even should the Court be
of a contrary opinion, and that there has been some irregularity, the case of
ferry ▼• Turner (c) is an authority to show that the Court will refer it back
to the master to see if the defendant has been damaged, and will not make
this rule absolute.
IfMSfj; coNlrd.— The rule of TVmtly Term, 1 W. 4, is express that there
most be notice of taxation. The rule of Hilary Term, 4 Will, 4, 17, con-
tains an exception, and the question is, whether in this case there has been
la appearance, or what is tantamount. The agreement was in fact an agree-
ment that the defendant should be considered in Court, and the plaintiff
himself treated it as such when he signed judgment. The plaintiff will not
be prejudiced by this rule being made absolute, except so far as regards
my excess in the taxation.
CoLsniDes, J. — I have no doubt this case is not within the rule of
Hilary Term, 4 WUl, 4,17. I think when that rule is examined it cannot
be said to apply to a case where the parties go before a judge at chambers
and agree that judgment should be signed on a certain day, and that it is
impossible after that for the plaintiff to say that the defendant has not
iqipeared. But after the case of Perry v. Turner^ I cannot treat this as an
inegnlarity, but must send it back to the master to see if the defendant is
prejodieed. I think the plaintiff was irregular in not giving notice of the
taxation, but I shall not set aside the judgment ; and therefore, even if
there is no reduction in the taxation, the defendant must not pay the costs
of this rule. There must, therefore, be a special order that this rule be
diiduffged on the parties going before the master to see if the defendant is
prejodieed. If any reduction is made, the plaintiff is to pay the costs of
tUi rule ; but if no reduction is made, then there will be no costs on either
ode.
Rule accordingly.
131
Bail Court,
Llotd
V,
Kent.
(«) 1 DowL P. C. ir6.
(I; 2 Dowl. P. C. 308.
89.
(r) 1 Dowl. P. C. 300 ; 2 Crorop. fit Jerv.
132
TERM REPORTS in thb KING'S BENCH.
Bail Ctmrt,
A iigMificnit ou
the sentence of
an EeelsuMtieal
CMrrr having been
set aside bj the
Court of Ckmrn-
etry for an am-
biguity appearing
in the teuience^
and no subsequent
proceedings
having been
taken, and there
appearing no in-
tention to
proceed, the
Court refused a
prohibition ap-
plied for, on the
ground that no
good signiflcmvit
could issue on
such a defective
sentence.
BoDENHAM and others v. Ricketts,
YN the Consistory Court of the diocese of Hereford, a sentence was pro-
nounced *' in a certain cause of subtraction of church rates or other
ecclesiastical contribution ;" it also mentioned that Ricketts, " in the years
1829 and 1830, or one of thero, was a rated inhabitant/' &c. This sentence
was appealed against in the Arches Court, and then in the High Court of
Delegates, and confirmed in both. Afterwards an application was made to
the Court of Chancery to set aside the significavit which had issued on this
sentence, and the Court of Chancery, on the authority of the case of The
King V. Fowler (a), discharged the stgnijicavit, on the ground that the sentence
was uncertain. In Hilary Term last this Court discharged a rule nisi for
a prohibition obtained, on the ground of want of jurisdiction in the EccU"
siastical Courts (6).
Sir F, Pollock now applied for a writ of prohibition to the Consistory
Court, in which the original sentence was pronounced. — This sentence being
clearly bad in form, as is shown by the decision of the Court of Chancery, it
will be impossible for any significavit to issue on it which can be good..
The defendant, therefore, will be liable to be perpetually harrassed by signi'
Jicavits, which cannot possibly be of any force. If the defendant were
arrested on a writ de contumace capiendo on this sentence, and were brought
by habeas before this Court, he would certainly be discharged. The point
formerly before this Court was the want of jurisdiction, but now, by the
decision in Chancery, it appears this was also an objection ; and that though
the Court has jurisdiction, yet it has been exercised in so informal a way,
that it cannot be legally enforced. It is preferable that the defendant
should come at once for a prohibition under these circumstances.
Cur, adv, xnUt,
Coleridge, J. afterwards (June 13th), gave judgment. — This was an
application for a writ of prohibition to the Consistory Court of the diocese of
Hereford, in a cause in which sentence has been pronounced, and for an
alleged defect appearing on the face of such sentence. The application is
made after the sentence has been twice confirmed on appeal, and in Hilary
Term last this Court discharged a rule for a prohibition in the same cause.
At that time a defect was relied on in an earlier stage of the proceedings ;
but the defect now insisted on was then in existence and within the know-
ledge of the applicant, and had indeed been insisted on in the Court of
Chancery, in which an application was made to set aside the signijicamtt
proceeding on and reciting that part of the sentence now relied on as dis-
closing the defect. An application thus made is certainly not to be favoured,
but as the writ of prohibition issues of right, not of favour, this Court is
bound to grant it, if legal grounds are laid for its issuing.
The rule is now moved for on reading two affidavits; one of them verifies an
(a) 1 Salk. 293. 350 ; 12 Mod. 418 ; I (b) See this case. 1 Ilarr. & Woll.753; 6
Ld. Raym. 586, 618 ; Holt, 334 j Fwt. 243. Nev. & Man. 170.
TRINITY TERM, 1836.
office-copy of the sentence, which appears to have issued " in a certain cause
of suhtraction of a church rate or other ecclesiastical contribution." A signifi-
each issued upon this sentence, and reciting these words has already been set
aside by the Court of Chancery , on the ground that these words ** are ambi-
guous and do not show with sufficient certainty the right of the Court to issue
the writ, for the other ecclesiastical contribution might not be a matter within
the jurisdiction of the Ecclesiatical Court j of which the King's Courts ought
to be the judges." Many other authorities might be cited to the same
effect, and without canvassing for the present the distinction which may
exist between the sentence and the signi/icavit, it would certainly be fitting
to grant the rule nisi on these authorities, but for the considerations which
the other affidavit suggests.
This affidavit is made by Mr. Ricketts himself, and after giving the reason
why he believes the sentence to be illegal, states, that two signijicavits have
been quashed which had been issued on this sentence, — the first for irregu-
larity,— the latter for this very defect ; that according to a decision of Sir
/. NichoU, an Ecclesiastical Court is never functus officio until the decree is
obeyed ; that two writs de contumace capiendo have issued, founded upon
this sentence in May last, from the Arches Court and the High Court of
Delegates, and that he believes ** unless the Consistory Court is prohibited
from all further proceedings, he may be perpetually harrassed by signifca-
9iis and writs issued in consequence of such significavits.'*
This then is a case in which a sentence has been pronounced alleged
to be defective, in which a significavit issuing upon it has been quashed
for this defect, and in which either the party promovent has not at-
tempted, or the Court itself has not allowed him to take any step sub-
sequently ; nor is any ground alleged from which this Court can infer
that any proceedings are contemplated. I have always understood in prac-
tice, and in principle it should seem to be necessary, that in order to
warrant the issuing of a writ of prohibition, it should appear either that the
Court below was de facto proceeding, or that there was ground to appre-
hend it was about to proceed in a matter beyond its jurisdiction, or accord-
ing to a course in violation of the common law. Where the pleadings are
io progress the Court is proceeding, and if upon their face it appears that
the issue must be one which the Court ought not to try, it has been decided
that a writ of prohibition is not premature ; Byerly v. Wlndus (a). And in
Notley v. Cozens (6), the judgment of Bxdler, J. is material to the same
point; he says, " The suggestion states that the proceedings are now
depending, for though a sentence has been given, yet the costs have not
been paid, and they are now proceeding to compel payment of the costs, then
they are in fact proceeding in this suit."
In the present case it is not stated that any proceedings are de facto being
had or contemplated ; if the sentence be substantially illegal, and cannot be re-*
formed, why is this Court to presume that the Court below will issue any exe-
cution, or take any steps to enforce it, especially after the defect has been
pointed out by the superior Court ? If, on the other hand, the defect be of a
kind which by the course of the Ecclesiastical Court may be amended by the
Court below, as to which I express no opinion and have no information, why is
this Court, by granting the present application, to prevent it from so doing ? It
(•) 5 Bain. & Crass. ^ -, 1 Dowl. & Ryl. 594. (6) 1 Term Hep. 556,
133
Bail Court.
BODENHAM
KiCKZTTS.
134 TERM REPORTS in the KING*S BENCH.
Bail Court. 18 enough however to say, that at present I see no ground for iMuing a writ
^^^^'^ of prohibition, because I see no evidence of fact or presumption of law
BoDBifHAM fjpQnj which any illegal, proceedings or intention so to proceed, can be
RicKBTTs. inferred.
Rule refused.
White's Bail.
1. If only one A S, DOWLING opposed thesc bail, and refused to examine one who
cannotjnstify.* appeared, on account of the absence of the other. He submitted that
2. KoUceofbaU, |jg ^^g warranted by the usual course of practice in refusing to examine one
descruHDg oqe of . * * "
the iMul by the alonC.
initial only of his
second christiui . n i
name, held bed. KnowlcSf contrd, submitted that it was a matter for the discretion of the
Court.
Coleridge, J. — The practice, I believe, is, that one bail alone cannot
justify. 1 shall not disturb that practice, except under strong circumstances,
though I do not see the reason why one bail alone should not justify.
On a subsequent day both the bail appeared.
A. S. DowUng opposed them, and objected that the notice described one of
the bail as Joseph J. Young, which was insufficient, as the christian name
ought to be stated at fuU length.
KnowleSf contrd, — That is the only name by which the bail is known, and
it may be his actual name. It should be shown on the other side that this is
not his right name. There is no authority to show that a notice of bail, de-
scribing the bail by initials only, is insufficient.
Coleridge, J. — The argument that it is not shown that the real name of
the bail is not as described, would be an answer to all the different objections
that have been made to initials of a person's christian name. A rule of
Court has been made expressly to meet cases of irregularity in process,
where the defendant is described by initials only, if due diligence has been
used to obtained knowledge of the person's name (a), and the argument used
would apply equally to those cases, and show that rule to have been un-
necessary. The defendant must therefore pay the costs of the opposition to
these bail.
The bail were then examined and allowed,
(a) H. T. 2 WW. 4. 1. 32, 1 Dowl. P. C 187 ; and see also sUt. 3 & 4 Will. 4, c. 42, s. 12.
Park's Bail.
ftoUn* thcTOi. T^^ "°^*^^ of bail stated, that "the names, additions, and particulars of
deuces for the last and relating to the bail and their respective residences for the last six
aix months to be
'* as follows," and then describing one of the bail as of one place, and noW residing at another, b snffi*
cientlj positive as to where tfaat one has resided.
TRINITY TERM, 18S6. 135
months, have been and are as follows/' one was there described, and the other Aiti Court.
ts *• Eliaakfik H^Umat, widow, of 26, Half Moon Street, in the parish of St. p^^^^^^
George, Hanover Square, and now residing at 46, Jewin Street, in the city
of Ixitidon, and who is a housekeeper at 26, Half Moon Street aforesaid."
Matuel objected, that this notice did not contain a positive statement where
the bail had resided during the last six months.
CoLXRiDGB, J. — It is stated to be the respective residences for the last six
mimths ; I think it is sufficient.
KnowUs supported the bail, who were then examined and allowed.
Doe d. Sir Charles William Taylor, Bart. v. Meeks.
QN a motion for an attachment for the non-payment of the costs taxed on it cannot be pre-
the consent rule, it appeared that the affidavit of the lessor of the plaintiff, ^^^^a m^e by a
on which the motion was made, was intituled in the cause, and was in this baronet, who is
form, " Sir Charles William Taylor, of, &c. Baronet, maketh oath and saith, {„ ^hich the affi-
that he did demand, &c.'* but omitted to describe him as " The said Sir f*^^ I* intituled,
g^ is made by the
Charles W. Taylor,^ or as *' the lessor of the plaintiff.^' penon who is a
party, merely fpom
the ideutity of the
Channel submitted, that it sufRciently appeared he was the same person, name and addi-
on account of his being a baronet, as it could not be supposed there were ^^°'
two of the same name.
Coleridge, J. — I think it is not sufficient.
RuFe refused.
Jackson v. Taylor.
A
Capias ad satisfaciendum^ which did not contain the nonomittas clause, a m.m. having is-
was sent to the sheriff of York to take the defendant into custody. Ih^ff^UIuIds^*
The sheriff directed his mandate to the chief bailiff of the liberty of Picker^ mandate to the
uigt in YorkshirCf within which the defendant resided, but by an agreement who obtained time'
between the chief bailiff and the sheriff, the former arrested the defendant to make his return,
and gave him over to the custody of the latter, who carried him to the sheriff returned
county gaol. The plaintiff obtained the usual rules to the sheriff and the 17'*^'^!^''^*
diief bailiff to make a return, whereupon they each obtained time to make enuued to have
their returns. The sheriff returned cepi corpus, and the chief baUiff made J^^m dui^hi^^!
no return. An action was commenced agains( the chief bailiff for an escape.
Wightman applied for a rule to show cause why the rule, calling on the
chief bafliff to make a return to the mandate of the sheriff, should not be
discharged.
Knowks showed cause in the first instance. — The bailiff having applied
for time to make his return, is now precluded from saying he is not bound
to make a return at all. The sheriff has no right to interfere with this
154^ TERM REPORTS in the KING'S BENCH,
:%u v.<MMi« Ub«rty. The case of Bootkman v. The Earl of Surrey {a), shows that the
^^^'W l>iMliil'is baUe to an action for an escape. The case ofHepwortk v. Sounder-
jAh.t4M«^ AMI (6)> recognises the same principle ; and altliough in that case an appli-
I A^i]«Mu catioQ> similar to the present, was successful, it was on grounds which are
not to be found in the present case. Here the plaintiff has not in any way
interfered to show he has admitted the defendant to be in proper custody.
Besides, the bailiff, by applying for time to make his return, has recognized
the proceedings against him, which entirely distinguishes the present case.
[Cokridge, J. — ^In the cases referred to, had the sheriff returned cepi
corpus f] No, he had not, but that will make no difference: the bailiff
having recognized the plaintiff's proceedings, cannot now dispute it.
Wightman^ contrd, — The sheriff having returned cefn corpus, the bailiff is
entitled to this rule. The usual practice in cases like the present, in order to
save time, is for the plaintiff to rule both the sheriff and bailiff to make a
return, as it is uncertain what the sheriff may return. He may return mandati
ballivo et nullum dedit responsum, in which case it would be then necessary to
rule the bailiff; or he may return non est inventus, or cepi corpuSfWhen it would
not be necessary to rule the bailiff at all. In the same way it was necessary
for the bailiff to apply for time to make his return^ in order to see what
return the sheriff makes. He is not, therefore, concluded from having this
rule, the sheriff having now returned cepi corpus. The cases cited are not
applicable, as in those cases there had been no return by the sheriff of ccpi
corpus. It is immaterial to the plaintiff what may have passed between the
sheriff and the bailiff. If the fohner executes, within a liberty^ a writ taken
out by the plaintiff himself, not containing a non omittas clause, and makes a
return accordingly, the plaintiff cannot call on the bailiff to make a return.
Coleridge^ J.^ — This is an application made by Mr. Wigktman, on behalf
of the chief bailiff of the liberty, to discharge the rule obtained by the
plaintiff, by which the bailiff was ordered to return the sheriff's mandate.
It appears that when the writ of ca. sa. was sued out, the plaintiff delivered
it to the sheriff in the ordinary form, and the sheriff then directed his man-
date to the bailiff of the liberty. No return was then made, and the execu-
tion creditor obtained a rule to the sheriff, and another to the bailiff, to make
a return. Both the sheriff and the bailiff then obtained further time to
make their returns, and within that time the sheriff returned cepi corpus, and
the bailiff made no return. The question now is, whether, after having
obtained time for making his return, the bailiff is entitled to have his present
application granted. The object of the writ of capias is to obtain possessioit
of the body of the defendant, and it is immaterial to the plaintiff whether the
bailiff of the liberty or the sheriff takes him. As between those parties therd
might be some objection, but here there is no such qiiestioti between thett.
I do not see that the application for time by the bailiff, when he could not tell
what would be done by the sheriff, precludes the bailiff from saying, now let
me go free, the sheriff having returned cepi corpus. The rule, therefor^,
must be made absolute.
Rule absolute*
(a) 2 Term Rep. 5. (6) 8 Bing. 19.
TRINITY TERM, 1836. 137
Bail Court.
WicKENs V. Parker. ^"^"^^^
T^HE defendant was arrested on a capias in this actioni and on application a defeDdant who
to the Court last term was discharged out of custody, on the ground of p^rij arrnT^oa
being a certificated attorney. The rule for discharging him was made »«^«add»-
iTT 1 ^.,.1 ,.. 11 charged, but witii-
tosolute on the terms of no action bemg brought, but it was not oruered out the terms or
that the defendant should enter an appearance in the action. The defendant "teringacominon
** , - - ... appearance, can-
did enter an appearance, and made a demand of declaration. A rule msi not treat Uie m-
was obtained this term for setting aside the appearance, and demand of de- bS^u^l^edwitfi
claration, for irregularity. awritofiummona,
and therefore can-
PUUij showed cause. — When the defendant was discharged by the Court ^aranc7, *andde.
last term, he was in the same position he would have been had he been "*"«* • deciara-
lerred with a writ of summons. He was therefore entitled to enter an
appearance, and make a demand of declaration. If he was not entitled to
do so, by the eighth rule of T. T. 1 JV, 4 (a), he would be prevented from
ever signing judgment of non-pros, A plaintiff may, if he pleases, in all
cases serve a capias on the defendant instead of arresting him. — [Coleridge^
J.—The capias is directed to the sheriff, how can that be treated as service-
able process ?] — The fourth warning, which is directed by the statute 2 & 3
W, 4, c. 39, s. 4, and schedule No. 4, to be indorsed on the capias^ shows
that it may be served on the party.
Sir Wm, FoUeti^ contrd. — It is usual on discharging a defendant, who has
been improperly arrested, for the Court to order a common appearance to
be entered ; that was not done in this case, and therefore all the subsequent
proceedings are irregular. The fourth warning, on the back of the capias,
refers to those cases only where there are several defendants, and the plain-
tiff is desirous of arresting one or more, and not all ; in which case power is
specially given by the act, section 4, to serve the capias on those whom it is
not intended to arrest.
Coleridge, J. — The proviso in the fourth section of the act explains that
warning to mean, that if you do not intend to arrest all, where several persons
are sued, as to those not intended to be arrested the capias is to have the
eflfect of a writ of summons. That is the way to reconcile the two sections
of the act. The first section enacts, that the process " in cases where it is
not intended to hold the defendant to special bail/* &c. shall be according to
the form contained in the schedule No. 1 ; but the fourth section enacts,
" that in all such actions wherein it shall be intended to arrest and hold any
penoD to special bail, &c. the process shall be by writ of capias, according
to the form contained in the said schedule, and marked No. 4 ;" and after-
wards provides for the cases where the plaintiff wishes to arrest one or more
tely of several defendants sued together, and it is with reference to that
proviso that there is the fourth warning on the back of the capias. I appre-
hend, thel'efore, that you cannot now give a capias the effect of a writ of
smnmons. This therefore is irregular, and the rule must be made absolute.
Rule absolute,
(a) 2 Barn, dc Adol. 789.
138 TERM REPORTS n the KINO'S BENCH.
Bail CtfurU
Do£ d. All-Souls College, Oxford, v. Roe.
Rui« mri for H^HE declaration in this ejectment having been prepared to be served pre-
judgniMit igtinit M. , fm M« • ti<»« •■it
the catoai ejector, VI0U8 to Eoster Temii the notice at the end of it required the tenant to
f*"*^ h ^^A^ appear " next Easter term." The notice was dated, and the declaration
deciarmtion was scrved, on the 19th of il/ay, three days before the commencement of this
served just pre- ^gyjj,^
vioos to the tem,
and the notice r»>
to ii^wM^to n«t ^' tVilUams moved for a rule to show cause why judgment should not be
jSmmt Term. signed, unless the tenant appeared this term and defended the action.
CoLBRiDOB, J., granted the rule.
Rule niti granted.
MusTON V. Tabard.
The Court will "DARSTOW moved for a rule to show cause why a peremptory un-
not enlarge ape- dertaking, to trv at the sittings after term, should not be en-
remptory under- _ t d^ i •
uking, on the larged. On showing cause against the rule for judgment as in case of a
nttJ^hffwfiiithat *^^^"*^> when the peremptory undertaking was given, the plaintifF stated,
his evidence might that the previous default in not going to trial was owing to the unwillingness
SresUnVmattcr ^^ * material witness to be examined, as he expected it might prejudice his
pending before interest in some matter which was before the House of Lords. It was now
Lonis!'*^^- stated, that that matter was still [pending before the House of Lords, and
that it would probably be decided before the sittings in Michaelmas Term.
CoLEaiooE, J. — I never heard of such an objection. The witness is not
out of the jurisdiction of this Court, and can therefore be compelled to
appear ; and when he comes before the Court to be examined, he wiU be
protected^
Rule refused.
Deeley V. Burton.
A rule to compute JpRICE showcd causc against a rule to compute principal and interest on
"!^te* Tu*** ^ ^ ^*^^ ®^ exchange. He objected that the judgment had been signed as
the judgment has for waut of a plea *, whcreas, it was shown on affidavit, that a plea was deh-
^?^y veredintime.
/. Manning, contrd, contended, that as long as the judgment stood, the
plaintiff was entitled to this rule ; and that if a plea was in fact delivered in
time, the defendant should have applied to the Court to set aside the judg-
ment.
Williams, J. — t cannot interfere, this is no cause against this rule. As
long as the judgment stands I most consider it to be good.
TRINITY TERM, 1886. 130
then asked for the Court to allow the rule to stand over until he Bail Cimre.
applied to set aside the judgment, but
Deeley
V.
WiuoAMB, J., refused. Bubtoh.
Rule absolute.
BrOUGH V. SCARBY.
THIS cause had been tried before the under-sheriff, and a verdict found whe^ V*"**!"
X.,,. ,, tned and venuct
for the plaintiff. The plaintiff had afterwards consented, on a summons found fur the
at Chambers, to a new trial. The plaintiff, however, made default at the £t"^;7o^^to
last Assises ; nor had he tried the cause before the sheriff, as he might have to a new trial, bat
done. On a rule for judgment as in case of a nonsuit, ^S^lTthc d2e^^
ant cannot have
Gnmmg^ showed cause. — The plamtiff having once taken down the cause iueofanonsait.
for trial* the defendant is not entitled to this rule, but must carry down the
cause fat trial by proviso.
Mofuelf cantri. — The plaintiff having given his consent to the new trial,
wiQ take the case out of the general rule.
CoLXRiDOE, J. — ^The defendant's right to this rule is given by statute, and
it has always been held, that where the plaintiff has once taken the cause
down for trial, it is not a case within the statute.
Rule discharged without costs.
Doe d. Linsey t;. Edwards and others. King's Bench.
EJECTMENT. At the trial of the cause at the Norfolk Summer Assizes, in i. Au attom-
1834, before Gasdee, J., it appeared that Ellis Braham, being seised in JT.lrmereiJ'^ta
fee, devised his real estate to his widow for life^ remainder to Frances^ the one person in tiie
wife of John Blyfotd. The lessor of the plaintiff claimed under the devise JI^'^^LTo^T
to Mrs. Bljifbrd, The defendant, Sarah Edwards^ was the widow of Thomas but coutiuaes to
Edmtrds^ and was the tenant in possession, and the other three defendants were 5am»'|^nnft and
her tenants. On the 1 6th of Novtmber, 1801, Frances Blyjbrd^ having received conditions as be-
the rents up to that time^ died. On the 26th of November, in the same year, acknowledgment
the lessor of the plaintiff made an entry, and received an unstamped attornment that Uie per»on
m % \ rvM • 1 . ^ • 1 . .1 1 making it is te-
from the several tenants. 1 his attornment was objected to as inadmissible, nant, and it re-
fim, for want oi a stamp; next, because it was not made between the plaintiff ''''^^^q^"^'
and defendant, or those with whom she had any privity of estate ; and lastly, nant attomed in
because, tf she was to be bound by the attornment of her husband, that l^*ien^uiIita
attohmieiit could only afiect the land of which he was actually in possession tiue never entered
into possession,
nor received rent; and the estate was, between 1801 and 18S4,sold in several portions, and purchased by the
taiiatit*b wife* whocontinned in {loiaession till nearly 18S4* when ejectment was bron^t against her; this
poMCtaion was held to be sufficiently adverse to justify the judge in nonsuiting the plaintiff in that ejectment.
3. Though the tenant, when he signed the attornment, was only tenant of one part of the estate, and
luft wUb tisbaeqvMUy pmrchated the otiier portions of it— that attomnent was held properly receivable in
the action tfiiiift Uer, u part of the general evidence, at (o the rights of the plaintiff with respect to the
MtnUi.
140
TERM REPORTS in the KING'S BENCH.
King's Bench, at the time he made it. The learned Judge, however, received it subject to
these objections. The attornment was in the following terms : —
*' We whose names are hereunto set, being tenants and under-tenants in pos-
session of an estate and premises within that part of the parish ofTrozose Newton
which is situate in the county of Norfolk, formerly the estate of Ellis Braham^
of Denton, in the said county of Norfolk^ gentleman, deceased, and late of
Frances Blrjord, of Bungay, in the county of Suffolk, widow, deceased, to
which said estate and premises George Linsey, of Rockland, near Norwich, in
the said county of Norfolk, yeoman, now claims to be entitled as the lawful
heir or owner thereof ; and as such owner and heir hath on this day made a
formal entry thereon, in the name of taking possession thereof, do hereby
severally attorn and become tenants and under-tenants of the said George
Linsey from Old Michaelmas-day last past, of and for such part and parts of
the said estate and premises as is and are in our respective occupations, at
and under the several yearly rent and rents now paid by us, and under
which we now hire and occupy the same ; and we have this day severally
paid unto the said George Linsey the sum of one shilling a-piece, in part of
our said respective rents. Witness our hands, this 26th day of November,
1801:—
Daniel Bloom, tenant.
Thomas Edwards,
John Meek, + his mark, ^ Under-tenants to ditto.
John Beswick,
Caler Gooch, + his mark,
Adam Clarke, tenant.
John Browne, tenant."
Thomas Edxvards was at that time in possession of a part of the estate
called the Staith. The testator, Ellis Braham, had died on the 29th of
April, 1739. On the 5th of February, 1773, Frances Blyford was admitted
in fee, after a common recovery suffered, to the copyhold of Trowse Newton,
On the 11th of October, 1795, she surrendered to the use of herself for life,
and after her decease to Dixon Gamble in fee, subject to her will, and was
admitted on this surrender. On the 26th of March, 1796, she made her
will, and authorized her executors to sell the estate. The Rev. John
Gamble was admitted as heir at law of Dixon Gamble, and, as administrator
with the will annexed, sold the estate to different purchasers. On the 31st
of October, 1806, Thomas Watts was admitted in fee to a portion of the
property, and in 1807, Jonathan Stockings and wife were admitted in fee, on
the absolute surrender of Watts. In the year 1806, Thomas Edwards and
Sarah his wife were admitted in fee, on the absolute surrender of the Rev*
John Gamble, to the lime-kibs and Folly-close, being a portion of the
property sought to be recovered. On the 23d of A'pril, 1813, Sarah
Edwards was admitted in fee, on the surrender of Stockings and his wife to
the Staith property, also a part of the property sought to be recovered in
this ejectment. Thomas Edxoards continued to occupy the Staith from the
time he attorned up to 1807, when Stockings and his wife were admitted,
and took possession under their purchase, In 1 807, when it was purchased
from them by himself and wife, he again entered into the occupation, and
TRINITY TERM, 1836,
141
d.
LiNSEY
V,
Edwards.
coDtiiiued to occupy till his death, about seven years ago, from which time King*s Bench
it had been occupied by Mrs. Edwards, the now defendant, and her tenants. ^^^
Qaestions were raised at the trial as to the estate taken by Frances Blyford
nnder Mr. EUis BrahanCs will, and also as to whether the possession of
Eimards and his wife could, under the circumstances of this case, be con-
sidered an adverse possession. The learned Judge nonsuited the plaintiff,
reserving leave to him to move upon both questions to set aside that nonsuit
and enter a verdict for the plaintiff. A rule having accordingly been ob-
tamed,
Biggs Andrews showed cause. — The nonsuit was right. The lessor relied
at the trial upon the attornment in 1801. That attornment alone, without
possession taken under it and rent received, will not enable the plaintiff to
ynjiinmin this ejectment. The signature to the attornment of Thomas
Edwards does not necessarily bind Sarah Edwards ; there is no proof that at
the time that attornment was made, she was married to Edwards, The fact
diat when he died she was his widow, by no means shows that when he made
the attornment she was his wife. The attornment is not sufficient to prove
the tenancy. Gregory v. Doidge (a), shows that attornment only is no
estoppel, if the party to whom it is made is not lei into possession. The
tenancy ought to have been proved aliunde. If this action had been brought
against Edwards himself, he might have stood on his possession in answer to
it. — [Coleridge^ J. — Do you mean to argue that mere non-payment of rent,
without claim set up, is as matter of law sufficient title ?] — It is so in this
case. The effect of the attornment is gone, after a few years' possession.
The attornment was not admissible in evidence. If it was an original agree-
ment, it required a stamp, Cornish v. Searell {h). It must have been an
original agreement here, for there is no proof whatever but that the lessor
of the plaintiff was a stranger to Frances Blj/ford, Then again this attorn-
ment never having been acted on for above thirty years, and the other party
having been in possession all that time without payment of rent, he must be
considered to have been in possession upon an adverse title. At all events,
should the Court be against the defendant on all the other points, the only
property which can be recovered under this ejectment, is that of which
Edwards was actually in possession when he signed the attornment, ^ith
respect to that, it is submitted that acts done by him at that time cannot
affect the rights of Mrs. Edwards, who claims under a purchase subsequently
made by her, and who is not shown to have been his wife when he made this
attornment.
Kelhf and Mannings in support of the rule. — There is no such adverse
possession here as can affect the title of the plaintiff. But if there is, it is
dear that the question of adverse possession is in this case a question of fact
that cannot entirely be withdrawn from the consideration of the jury. The
nonrait must therefore be set aside. Adverse possession cannot be pre-
sumed— It roust be proved. It cannot be presumed so as to give a title
from the mere lapse of time. In Eldridge v. Knott (c), it was held that
mere length of time short of the period fixed by the Statute of Limitations,
(«) 3 Biog. 474. . (c) Cowp. 214.
(b) 8 Barn. & Cress. 471.
142
TERM REPORTS in thb KING'S BENCH.
Dos
d.
LiKSEY
V.
Edwards.
King*s Bench, and unaccompanied with other circumstances, was no bar to a claim of quit
rents ; and Lord Mansfield there said, that the case ought not to have been
lefl to a presumption of law within less time than the period fixed by the
statute. In no case could mere non-payment of rent be sufficient to raise a
presumption of title, but here, if any such presumption could arise from that
circumstance, it is rebutted by the stronger presumption arising firom the fact
of attornment. There is sufiicient in this case to affect the rights of Mn.
Edwards^ and those who claim under her, for though it was not distinctly
proved at the trial that she was married to Edwards when he made the
attornment in 1801, yet no question whatever was raised on that subject,
and at all events she cannot stand in a better situation than those who then
held the property, and under whom she now derives title. Those persons
joined her husband in making the attornment, and he signed it either as
tenant or under-tenant of all the property now in dispute. In either
character^ his acts must bind his widow.
Cur, ado, vuU.
Lord Denman, C. J., in this term delivered the judgment of the Courtw— ^
This was a rule obtained for setting aside a nonsuit. Several points were
made in the argument, but we shall confine our judgment to one. The lessor
of the plaintiff may be taken to be the heir at law to John Lnisey, the
remainder-man mentioned in the will of Ellii Braham, In proof of his title
to recover, an instrument bearing date the 26th of October ^ ISOl, was
tendered in evidence, as an attornment made by Thomas PdmardSf the
husband of the defendant, who was one of the tenants, of one partj and an
under-tenant of another part of the property now in dispute, and who with
the other tenants and under-tenants, attorned to the lessor of the plaintiff,
and paid him one shilling as an acknowledgment for the rent. It was objected
that this attornment could not be given in evidence for want of a stamp, and
the case of Comuh v. Searell (a) was cited as an authority. By the instru-
ment in that case the party '' attorned, and became the tenant " to two of
the sequestrators named in a writ of sequestration " to hold the same for
such time and on such conditions as might be subsequently agreed upon ;"
and it was held that that was not a mere attornment, but wap an agreement
to become tenant, and therefore required a stamp. It was not there con-
tended that a mere acknowledgment of the existence of a tenancy required
a stampi and we think that in this case the instrument was nothing more.
In that case Hoiroyd J. says, '^ Where the original landlord parts with his
estate, and transfers it to another, and the tenant consents to hold of that
other, the tenant is said to attorn to the new landlord. The attornment is
the act of the tenant's putting one person in the place of another as his
landlord. The tenant who has attorned continued to hold upon the same
terms as he held of his former landlord." This appears to us to be the only
effect of the instrument in the present case. This objection was therefore
properly overruled at the trial. It was next objected that this attornment
was inadmissible as against the defendant, because as it was signed by
Thomas Edwards, and Bloom, and the others, for other property of which
they were then tenants, it could not affect the right of the defendant as to
(a) 8 Barn. & Cress. 471.
TRINITY TERM, 1886.
143
Doe
d.
LiNSEY
I'.
Edwards.
iraperty of which she luhsequently became possessed, Tiomoi Edwards King^t Bench.
WIS the husband of Sarah Edmards, and without inquiring whether this
psper waa good evidence against Sarah Edwards upon this particular issue,
it appears to us that it properly formed part of the evidence to be offered by
the plaintiff in support of his general title to the property. This mode of
considering the question disposes of a third objection, namely, that at the
date of the attornment Thanias Edtoards occupied a part only of the property,
10 diat the evidence, if admissible at aU, was only admissible as to that one
ptrt In our mode of viewii^ it, the document was evidence as to the rights
of the plaintiff with respect to the estate generally. The observations,
tberefore, that may be made as to the existence or non-existence of any
pririty of interest between the parties who then attorned and the present
defimdant, will not affect the question of the admissibility of the document,
bot only its value as evidence, the difference being not in kind but in degree.
The noxt otgection was, that from 1801 to the date of the demise, there was
no evidence of any act of ownership in proof of the right of entry and
poesrisinn claimed at the former period by Uie plaintiff; that since 1801 the
attonuoent never had been acted upon, and that there was no evidence of
any rent ever having been paid by the tenant in possession since that time,
diat consequently there was a sufficient adverse title to preclude the lessor
of the plaintiff from now recovering. The statute of d & 4 Will, 4, c. 27,
was not adverted to in the argument, and the action having been brought
befinre the 1st of January ^ 1884, it is not necessary to consider the effect of
that statute. But, considering the whole of the evidence without reference
to that statute, we think that this objection to the right of the lessor of the
plaintiff to recover must prevail. [His Lordship here shortly stated the
6ets.3 During this whole periodi from the death of the supposed tenant for
life in 1801, with the exception of the entry and attornment, the Edwardses
knra treated this as their own property, and the solitary entry made by the
lessor in 1801, with no subsequent assertion of right for more than thirty
yearsi and nothing done upon the attornment thus procured, is not sufficient
to prevent the possession from being considered as of an adverse kind. If
mdi a poaaession undisputed for such a time is not to bar a claim of this
lort, we cannot but ask when the right of entry claimed for the plaintiff is
to eeaae, and when the statute of James is to begin to have effect ? ^e
tkink it better to decide the case on this point, which may be of general
appUcationi than on the other point arising upon the construction of the will,
whether Aumces Blffford took an estate for life or in tail.'; on which we give
10 opinion* But on this ground we think that this rule should be dis-
dyngad.
Rule discharged.
Rex V. CHAi^l'Ea Heath,
AT the General Quarter Sessions of the Peace holden at Petn>m*thf in the wj»c« * b«»tard
J\ ^« ii«»» 1 i^ft chutl becomes
county of Sussex, on the 8th ot January ^ 1 835, an order was made on Charles chargeable to Uic
parish, the over-
srtn ooght to applj, ander the 4 Ac 5 WUf, 4, c. 1&, s. T8, to Uie next Qenenl Quarter Sessions of tlie
FeaM tar aa order on the putative hther ; or at all events, if tlie application is defiarrtd to the sabsequent
MMiopa, the overseert most show that thejr made diligent inquiri to discover the father, and tliat they did
not discover him in time to give him| before tlie next sei«|om^ under the 73d section of the statute,
fourtatn days' notice of the intended plication.
Smtit, that in soch a caa« the oveneen tboiild nake the appUettton to tbt Mitions, and get the order
far tlM hftiiBS rcspitwi.
144 TERM REPORTS in the KING'S BENCH.
King't Bench, Heath, of the parish of Stopham^ as the putative father of a male bastard child,
^■^ /^ to reimburse the parish of Stopham for the maintemmce and support of the said
The King child, under the 4 & 5 fTilL 4, c. 76, s. 72 (a), subject to the opinion of this
Heath. Court upon the following case : — Eliza Penfield, of the parish of Stopham, single
woman, was on the 16th day of August, 1 834, delivered of a male bastard child ;
and the said child became, on the 29th of September, in the same year,
chargeable to the parish of Stopham, and continued so till the making of the
said order. The Court of General Quarter Sessions " next afVer'* the S9th
of September, 1834, was holden at Chichester, for the said county, on the 13th
day of October in the same year. No application was made by the overseers
of Stopham for an order on Charles Heath, in respect of the said bastard
child, until the General Quarter Sessions holden at Petworth, for the said
county, on the 8th of January, 1835 ; nor was any notice served on the said
Charles Heath, by the overseers of the parish of Stopham, of any intention to
make such application, until the 9th day of December, 1834. It was objected
on the part of the said Charles Heath, that the Court of Quarter Sessions
holden on the 8th day of January, 1835, had no jurisdiction to bear the
application ; but this objection was overruled. The Court of Quarter Ses-
sions also declared, that it was not necessary for the overseers to show that
they had made diligent inquiry as to the father of such child, previous to the
October Sessions ; and held, that though the child became chargeable on the
29th of September, still that the application to the Epiphany Quarter Sessions
was in sufficient time, under the provisions of the statute. An order was
consequently made upon the defendant, and a rule had since been obtained
to bnng up the order to quash it.
Darby, in support of the rule. — The question on this section of the ad
has already been decided by Mr. Justice Coleridge, in the Bail Court, upon
a motion for a mandamus in the case of The King v. The Justices of Oxford'
shire(b). His lordship there held, that the general rule was, that the applicatioa
must be made at the next sessions. The 73rd section requires, that fourteoi
days' notice shall be given to the person intended to be charged with being the
father of the child ; and the argument will be on the other side, that if a case
should arise in which it would be impossible to give that notice, this construc-
tion of the statute cannot be carried into effect. The answer to that is, that here
the notice might have been given, and that in the supposed case the parties
applying to the Sessions must show the impossibiUty of their complying with
the words of the statute. The introduction of the words respecting " dili-
gent inquiry" cannot affect this question. The time is positively fixed by
the statute, and the application, unless made within that time, cannot be
entertained by the Sessions, except upon clear proof that it could not pos-
sibly be made at an earlier period.
W. H. Watson, in support of the order. — The argument contended for on
the other side would bind the parish officers to do what is impossible ; for
it does not appear, on the face of the case sent to the Court, that they knew
(a) Bv which it is enacted, ** that when think proper, after diligent inquiry as to the
any child shall hereafter be bom a bastard, father of such child, apply to the next General
and shall, by reason of the inability of the Quarter Sessions of the Peace, after sudi child
mother of such child to provide for Its main- shall have become chargeable, for an order/'
tenance, become chargeable to any parish, &c.
the oveneers, &c, of sudi parish, may, if they (6) Ante, 1 10.
TRINITY TERM, 1836. 145
before the October Sessions who was the putative father against whom they King^s Bench.
had to make an application to the Sessions. The overseers are, by the sta- ^^^^/^J
tote, directed to make " diligent inquiry" as to the putative father, and they The Kino
nuit give him fourteen days* notice of the application. Till they have done Heath.
this t^ cannot be heard. — IPatteson, J. — Then you wish us to read " the
next Sessions aiVer the child becomes chargeable," as the " next Sessions
ifter the putative father has been discovered."] — The section must be so
read. The Sessions meant are the first practicable Sessions ; that is, the
first after the discovery of the father, and afler the proper notice given him.
The case before Mr. Justice Coleridge decides the general rule, but shows
that there may be exceptions to it. The present case ought to be excepted
fiom such a general rule, for there both the Sessions had passed by. —
[WUBanu, J. — What would prevent the parties here from going before the
Setfions and getting the order for the hearing of their application respited,
OD a statement that they had not been able to discover the father?] — It was
not necessary to do so. The Court will make every intendment in favour of
the jurisdiction which the Sessions have here exercised. What is the meaning
of the words '' become chargeable ?" There may be different acts of charge-
ability, and each separate act of chargcability gives a right of application to
the Sessions. Every fresh payment on account of the child is a fresh ground
for such application. At any time, therefore, after such chargcability arises,
the overseers may apply to the Sessions and the order may be made.
Lord Demman, C. J. — The objection in this case is, that the Justices at
Quarter Sessions had no jurisdiction to make this order, upon the application
of the overseers, in the January Sessions of 1835. Whether they had or not
depends on the 72nd section of the act 4 & 5 Will, 4, c. 76, which declares,
diat where an illegitimate child becomes chargeable to the parish, the over-
seers or guardians ** may, if they think proper, after diligent inquiry as to
the fiufaer of such child, apply " not to the Quarter Sessions of the Peace
generally, but " to the next General Quarter Sessions of the Peace afler
nefa child shall have become chargeable." It is reasonable and just that
there should be some limitation as to the time for making this application,
odierwise the overseers might defer proceeding until the party had lost all
means of defending himself against what might be an unjust claim upon him.
I think that the period within which the application is to be made, must be
taken to begin to run when the child first becomes chargeable. Here the
SeMioiis had clearly no jurisdiction for the next Quarter Sessions afler the
dnrgeability had passed by, and the application was made at a subsequent
Sessioos.
LiTTLBDALE, J«-*On the whole I am disposed to think, though I have not
heen without my doubts on the question, that the provision as to the time of
the application is not directory, but that the overseers must apply at the first
Quarter Sessions afler the child becomes chargeable. It has been said, that
imless the father is known it is impossible to make the application ; but the
words of the Statute are, ** afler such child shall have become chargeable,"
and I do not know that we are obliged to put a forced construction upon
snch plain language. If unintelligible, or that what we now declare must be
done, cannot in some cases be complied with, that may be a reason why the
▼OL. II. L
146 TERM REPORTS in thb KING'S BENCH.
J^ta^'t Bwelu legislature should amend the statute. But in either view of the case it la
^"^^^^ clear, that in making this order the Sesaiona acted without juriadictioiL It
The Kino |^ ^^^ stated when the overseers first knew who the father was, or that tbej
HiATH. did not know him soon after the hirth of the child, or foarteea days belbfe
the October Sessions, so as to he then in a situation to apply for the order.
No ground is made out for our giving a different conatruction to the worda
of this section.
Patteson, J. — I cannot see how to avoid the eonstructioii that haa been
put upon the 72nd section by my Lord Denman and my brother LUUedtikf
for I do not understand what right we have to put upon the worda in dds
statute a totally different sense from that which they ordinarily bear. Ths
statute says, that " the overseers, if they think proper, may a^^tiy at the
next Quarter Sessions after the child shall have become chargeaUe,** mtiA
language is plain and intelligible. It is stated in this case, tha the
became chargeable on the 29th of Sepiember, and that the oveneera did
apply to the Sessions in October^ which primd facie were the proper
But the 7drd section is relied upon in support of the argvroent, that, by the
first Sessions is meant the first practicable Sessions, becaose it ia said theie
may not be fourteen days before the Sessions, so as to give the TtqamtB
notice. Here, however, there were just fourteen days ; but whatever votj
be the effect of this clause, if there is not that period, I think at all eventa it
lay upon the overseers in this case to show that the January Sessions were
the first practicable Sessions ; and that they should have been prepared with
evidence to justify the postponement, and should have shown dihgent inquiry
to ascertain the fhther, and an impossibility of discovering him at an enrbw
period. They did not show this, and the Sessions considered it unneceaaary ;
for any thing that appears, they might have known who was the fiither in
Sepiember.
Williams, J. — On the whole I am of the same opinion. The chief argn*
ment in support of the jurisdiction of the Sessions is founded on the imper-
feet remedy given to the parish by the 72nd section, but the caae briefly
amounts to this: — primd facie the application was made too late; tUi
objection was taken, and the overseers did not show why they had not
applied at the proper time. If the words of the act had been the next prac-
ticable Sessions, there would have been some ground for the argnmenta we
have heard to-day ; but that is not so. They are, ** the next General Qnar«
ter Sessions after such child shall have become chargeable." The Seaaions
applied to were not " the next,'* and no explanation was given why ** the
next" had been passed over.
Order of Sessions quaahed,
Harvey v. Grabham and another.
•dTnnfwri^ JgPEClAL assumpiit, stating an agreement for a lease, under which the
agreement by defendants wcrc to enter into the possession of a fiurm of the plaintiff*
Krliich one was to
take a farm of the oUier, and to take the atraw* chaff, &c. at a ralaatioa to be made bj tacli competent
persons as tlie two parties should respectively appoint. Such agreement entire, the two parts cannot be
separated from each other; and if one person only is, by parol agreement, afterwards appointed to make
the valuation, the landlord cannot maintain an action upon the parol agreement that rabttltnted, even
though the itnw tlid chaff, dec. have been taken and used by the tenant
TRINITY TERM, 1836. 147
wd aeeept it in the lame condition as that in which the plaintiff was bound King*i Bench.
to ftotawe it ftom the then tenants ; and it was by the agreement mutually ^<^v^
agreed between the parties thereto, that the straw, fodder, chaff, and colder, Hartst
whidi at the time of the then tenant's quitting possession should remain upon Grabham.
dtt pveimaes unoonsumed, should be appraised and valued to the plaintiff by
weh eompetent persons as the plaintiff and defendants should respectively
ifipoint, or by their umpire appointed in the usual way, and the amount of
mck valuation should be then forthwith paid to the plaintiff by the defendants.
Motnal promises to perform the agreement. The declaration then stated
tint the defendants entered and became possessed, and that afterwards the
defendants proposed to the plaintiff that the said straw, fodder, chaffy and
eoldert ahonld be appraised and valued to the plaintiff by one David Coats-
wtrtk, an the respective behalfs of the plaintiff and the defendants, and the
pkiBftiff having assented to the proposal, the said straw, chaff, &c., were, by
■id with the mutual consent and agreement of the plaintiff and the defend-
wiB, valued to the plaintiff by the said David Coatsxporth at %3dl. 7s.,
lAereof the defendants had notice, but have not paid, &c.
Seeond count, — Groods and chattels bargained and sold.
The fint Plea, beginning in the usual form of a plea to the whole declaration,
iCaled that the first agreement in the first count mentioned was in writing, and
that the variation firom it was only by word of mouth, and concluded with a
verification and a prayer of judgment ** if the plaintiff ought to have or
Biainfain his aforesaid action thereof against them."
The second Pita to the second count stated, that the goods mentioned in
Ast coottt were sold under an agreement that a valuation should be made
by two persons, and that such valuation had never been made, and concluded
sko with a verification and general prayer of judgment.
RepBeaiim as to the first plea. — That by means and in consequence of the
pn^oaal made, and the assent of plaintiff to such proposal, and of the said
itnw and chafi^ &c, having been appraised and valued by Coatsworth, by
nd with the mutual consent and agreement of the plaintiff and the de-
fndants, the said plaintiff and defendants did waive and dispense with the
parfermance of so much of the first-mentioned agreement as related to the
inde of aj^raising and valuing, &c.
RtfUcatkm to the second plea. — That the goods were bargained and sold
nder the first-mentioned agreement in the first count mentioned; then
Mating the proposal, &c., to vary the mode of taking the valuation, in the
IHM manner as in the first count of the declaration.
lUfomder to the replication to the first plea. — That the said alleged
waiver and dispensation of the performance of so much of the said first-
mentioned written agreement as related to the mode of appraising and
valning the said straw, &c., in the said replication mentioned, and that the
said alleged substitution of the said other and different appraisement and
valuation in lieu thereof, in the said replication mentioned, were, and each
of them was by word of mouth only, and not in writing.
Ktjmnder to the replication to second plea. — That the first agreement was
in writing, and that the said proposal, &c., was by word of mouth.
Demurrer to the rejoinders. — Joinder in demurrer. — The questions stated in
the margin^ as intended to be raised, were, whether in law the mode of value-
l2
148 TERM REPORTS in the KING'S BENCH.
King*t Bench, tion agreed upon in writing could be altered by parol. Also whether the pleai
v^/^ did not respectively profess to answer more than they afterwards answered.
Harvey
Grabham. Piatt, in support of the demurrer. — In this case the Court will look at
the whole record, and then it is clear that the judgment must be for the
plaintiff, for the pleas are bad. If a plea begins with an answer to the whole
declaration, but in truth the matter pleaded is only an answer to part, the
whole plea is bad, and the plaintiff may demur (a). It is so here. As to
the question intended to be raised upon this demurrer, it is whether an
agreement in writing may not be waived as to part by parol ? It is dear
that it may. The greater part of the agreement here relates to an interest
in land, but the portion which the plaintiff says was waived by the substitu-
tion of a parol agreement, relates to the purchase of certain goods. These
are the chaff, straw, and manure. With regard to them the parol agreement
is good by itself. — {_Pattes<m, J. — The plaintiff here proceeds for goods
bargained and sold. They must be bargained and sold under a contract
The question is, whether they were so bargained and sold under a new
contract distinct from that relating to the land ?] — ^The agreement here was
performed. The valuation by Coatswartht who was by mutual consent
appointed to make it, must be considered as a valuation made by a competent
person, appointed on the respective behalfs of the plaintiff and defenduits.
V, WiliiamSf for the defendants. — ^The pleas are good. If a plea under-
takes to answer the whole of the declaration, and then only answers part,
perhaps the objection might be taken advantage of by special demurrer.
But that objection does not exist here. Each plea avowedly; goes only to
answer a part of the declaration. If the declaration is answered, all the
parts of that answer constitute but one plea, and one general conclusion is
good for all. The conclusion to the first plea may be treated as surplusage.
The proper conclusion is at the end of the second plea. As to the other
point, this case is clearly within the Statute of Frauds, and must be decided
by Goss v. Lord Nugent (6), where it was held, that parol evidence was not
admissible to show the waiver of one part of an agreement, when that agree-
ment was required to be in writing by the Statute of Frauds. The present
is an agreement of that sort. It relates to an interest in land, Waller ▼•
Morgan (c). The contract here is entire, and no part of the promise can be
separated from the consideration. That consideration is the entry upon the
farm and possession of the land. — [Coleridge, J. — As it now stands does it
not amount to this, that the defendants are in possession, that the action finr
goods arises upon a new contract, and that the plaintiff sues in respect of
the breach of that new contract ?] — He cannot do so, for he is not at liberty
to substitute by parol a new contract for the old ; Goss v. Lord Nugent is
decisive on this point. The contract under which the defendants are in
possession, is that under which the goods have been bargained and sold, and
the two things cannot be separated from each other.
Piatt, in reply. — This declaration is not confined to one transaction alone.
(a) Wins. Saund. 28, n. 3; Thmatr, HtMthorn, (b) 5 Barn. & Ad. 68.
2 B. & C. 477. (c) 2 Cox, 369.
TRINITY TERM, 1836. 149
There are two agreements. The first, under which these defendants are in King's Bench.
possession of the land ; the second, relating to the valuation of the goods, v^s/'v;
and consisting of proposals made on the one hand and assented to on the Harvey
other. The first part has been executed, and therefore the Statute of Ghabham.
Frauds does not apply. — [Paiteson, J. — In Falmouth v. Thomas (a), the
objection as to the want of a written agreement was held good, though the
defendant had there received the money arising from the sale of the things
which were the subject of the contract.] — In Warren v. Stagg, mentioned in
the case of lAttler v. Holland (6), in that case itself, in Thresh v. Rake (c),
and in Cuff y. Penn (cQ, all of which were considered in Goss v. Lord
NugefU (e)i alterations as to the performance of a written contract had taken
plaee, and those alterations were treated as valid in actions on those contracts.
The variation of the contract here is not greater than it was in any of those
cases.
Cur, adv, vult.
Lord Dekman, C. J. (after reading the pleadings, proceeded). — It
was contended for the plaintiff that the first plea was bad, because it pro-
fessed to be pleaded to the whole declaration, yet contained an answer only
to part ; but we think it is perhaps pleaded to the first count only, though in
an informal manner^ which might make it liable to a special demurrer. It is
not, however, competent to the plaintiff to take that objection on a demurrer
to the rejoinder. The real question raised by the demurrer is, whether the
waiver of the mode of valuation stated in the pleadings was binding, not
having been in writing. The original agreement was in writing, and neces-
laiily so, because it related to an interest in land. It was an entire agree-
ment, tbe two parts could not be separated from each other, and the whole
was therefore necessarily in writing ; Chater v. Beckett (/). Now assuming
that it was competent to the parties to waive and abandon the whole of the
first agreement by a subsequent agreement not in writing (which is, however,
itroi^y doubted in Goss v. Lord Nugent (g) ), yet here, as in that case, the
parties have not waived and abandoned the whole, for it appears by the
declaration what the lease was that was granted, that the original agreement
to grant it was still subsisting, and the plaintiff avers his readiness to grant
it mider that agreement. What has been done is a waiver and abandonment
of part only, and if that part had of itself been required to be in writing
within the Statute of Frauds, the cases of Goss v. Lord Nugent, and Lord
Falmouth v. Thomas (A), are express authorities to show the waiver would
not be binding, though that part might, as a contract by itself, have been
good without writing, on account of the acceptance which is averred in the
first count. It may be otherwise as to the second count, which is as to
goods bargained and sold, and not goods sold and delivered, and it was con-
tended that as it was competent to the parties to have made two contracts in
die first instance, one in writing as to the land, and the other not in writing
as to the straw and manure, so it was competent to them aflerwards^ by ah
agreement not in writing, to separate the two parts of the original agreement.
(•) 1 Cfom. & Mec. 89 ; 3 Tyr. 26. (e) 5 Barn. & Ad. 58.
(*) 3 Term Rep. 591. (/) 7 Term Rep. 201.
(c) 1 Esp. N. P. C. 63. ig) 6 Barn. & Ad. 58.
{/) 1 Maole & Selw. 21. W 1 Crom. & Mee. 89.
150
TERM REPORTS in the KING'S BENCH.
King*i Bench,
Harvey
V.
GftABHAM.
and to substitute a new agreement, not in writing, as to straw and manure.
We think that it is not so, but that the agreement being entire in the first
instance, must so continue, and it cannot be separated or altered otherwise
than by writing. If it could it would follow that, should the present
plaintiff hereafter refuse to execute the lease, the present defendants, in
suing for such refusal, would be obliged to state the altered agreement with
the consideration^ and aver a readiness to perform it, and then to prove
their case partly by writing and partly by oral evidence — the very predica-
ment ^hich the Statute of Frauds was intended to prevent. It was attnnpted
to be argued that the original agreement was performed, inasnnich as one
person named by mutual consent, would be considered a competent person
respectively appointed by the parties, but we think this construction cannot
reasonably be put upon the words of the agreement, neither has the pkintff
attempted so to treat it, for be has, both in the first count and the replicatian
to the plea, expressly alleged a waiver of the original, and a compliance widi
the substituted agreement. Judgment must therefore be given for the
defendants.
Judgment for the defendants.
Rex v. The Inhabitants of Witney.
whwetwojua- ON appeal against an order of removal, by which James Prict, his wife
w tnZ'^l and chUd, were removed from the parish of St. Clement, to the parish of
jurisdiction wiUi Witney, the sessions confirmed the order, subject to the opinion of this
city, vhich is uot Court upou a casc which stated, that by an Act of Parliament passed in the
the**"ma ^'th* "'^' ^ ^ '^ ^^^^ ^^ ^^"^ ^^^' ^* intituled " An Act for the better regulating the Poor
they have not within the city of Oxford,*' the mayor, &c., were constituted guardians of the
tic«fwsS*chd"t P^°^ ^"^^"^ '^® ^'^y ^^ Oxford; and by the 17th section of the act it was
sign an allowance' cuactcd, " That all poor children who at any time should be maintained by
o(Zln^Tund the said guardians, should be and remain under their government tiU they
apprentice by the should attain the age of fourteen years," and after such children should
p«rt^wiihin*the ^^^ain the age of fourteen years respectively, or sooner, if the guardians should
city to « person think fit, powcr was given to the said guardians, at any monthly or special
wiUiintiie^ounTy. Court, by writing under their common seal without stamp, to bind and put
And such allow- forth any such children apprentices to any respectable person ^in England ;
alone will be good ^nd it was declared that such writing should be mutually binding as an
s"c* MO** ^ ^*^' '^^^^^^^^^ between the master and mistress and the apprentice, and that the
The party re- apprentice should gain, and be entitled to gain a settlement under snch
denSiS^at th ^ *" indenture, and that the same should in all respects be enforced according to
sions need not the laws in forcc couceming the binding out of poor children apprentieesy
whose parents are not able to provide for them. On the part of the
respondents, a deed of apprenticeship under the common seal of the guardians
was put in, bearing date the 7th of March, IS22, by which the paupefy
James Price, was apprenticed to Thomas Harris, a watchmaker, in the
^ouid have^i^n appellant parish of Witney. The original order of two justices of the county
proved at the of Oxford foT thc binding was annexed to this indenture of apprenticeship,
other^rty. The ^^^ ^^ ^^^ ^00^ ^^ ^^ indenture appeared the allowance of the apprenticeship
allowance of the
indenture by two justices raised the prerampUoB that til ttuU the statute required to be done btfine such
allowooce was mtde had beeo properly done.
prove notice to
the overseers of
the parish into
which the pauper
"was bound ap-
prentice. The
TRINITY TERM, 1836. 151
bj the nme two justices. The deed of apprenticeship was not allowed by KingU Bench,
Vkj other than diese two justices, who were justices of the county of Oxford, v^\^^
but not of the city of Oxford. The city of Oxford has justices of its own, ^'^
xuin the authority of two several commissions issued under the Great Seal, j^ inhabitants
one being a commisskm of gaol delivery, and the other of the peace, and of Witnet.
which are severally directed to certain noblemen and gentlemen, who are
joiticea of the county, and to the mayor, recorder, aldermen, and assistants
of the city. But the administration of justice under such commissions has
hitherto been conducted by the mayor, &c., only, and they alone have been
aecoBtomed to qualify as justices for the city. These justices of the county
of Orford have, however, a concurrent jurisdiction in the city of Oxford,
gacepting only within a small part of it, which is locally situate in Berkshire,
when the justices of that county have a like concurrent jurisdiction. It did
Botjappear by the deed of apprenticeship, or any indorsement thereon, nor was
it made to appear at the hearing of the appeal, that any notice of the appren-
ticeship had been given to the overseers of the appeUant parish, nor that any
overseer adhe appellant parish had attended before the justices and admitted
such nodoe. The execution of the deed by the guardians, by affixing their
common seal, was proved by the attesting witness, the then clerk of the
gnardiana, but no evidence whatever was given by the respondents with
respect to the notice. The pauper served more than forty days under the
spprendceship deed, in the parish of WUney, and the questions for the
opioioD of the Court were — first, whether the order and allowance of the
spprentioeship ought not to have been made by the justices of the city of
Orfordf — secondly, whether under the circumstances it was incumbent on
the lespondent parish to prove that notice of the intended apprenticeship had
been given to the appellant parish of IVUney, before the allowance of the
iadenture, or that an overseer of that parish had attended before the allowing
justices^ and admitted such notice ?
Maude and Cooper, in support of the order. — It is questionable whether
there need have been any allowance at all of the order. The object of the
(6 GtOm 9, c 139, was to put the power of binding poor apprentices into the
lianda of the justices of the county at large. For the purposes of that act
the city was within the county. There was no necessity for proving any
Bodoe to the overseers in this case. — [Lord Denman, C. J. — Was there not
a case of JUx v. Wkiston (a) lately before us, in which we held that all must
be presunoied to have been properly done which circumstances required, and
where the order itself did not show any omission or irregularity ?J — ^There
was such a case, and that gets rid of Rex v. Threlkeld (6), which will be
rdied on by the other side, but which is distinguished from the present, for
there it was found as a fact that notice was not given ; here it merely appears
that no evidence of the notice was given on the hearing of the appeal. For
die purpoees of this settlement it must now be presumed that every thing
was rightly done. In St. Devereux v. Muck Dew Ckurch (c), it was held, that
fiv the puipose of a settlement the entry in a registry of a marriage celebrated
by banns was sufficient, though neither the minister^ parties, nor witnesses
bad signed it, and though the publication of banns was not proved. In such
(«) 1 Hsir. & Wol. G96. (c) 1 Sir W. Bl. 367.
152 TERM REPORTS in the KING'S BENCH
King's Bench, a case as the present, if there is a subsequent act which cannot be properly
"^^^'^^ done without a previous act being done, and if the subsequent act is done
^^^ the Court will presume that the previous one was regularly performed (a),
The Inhabitants for otherwise there would be no knowing when rights depending on these
of Witney, formal matters of proof were safe from being impeached.
Chilton and Rtchardsj contrd, — The proof of notice is indispensable to the
validity of this order. This case cannot be distinguished from Rex v.
Threlkeldf and from Rex v. Newark (b). The allowance of these justices
is clearly insufficient. The 3 & 4 Will. 4, c. 6S, was passed to remedy
the inconvenience arising from the necessity imposed by the 56 Geo, 3,
c. 139, of having four justices to allow the indenture. That number was
declared, in the case of Rex v. Shipton (c), to be indispensable, although in
that case the justices allowing were justices for both counties. This Court
has, therefore, put a construction on the 56 Geo. 3, and the legislature
has recognized that construction, and has altered the law for the future.
The parties here ought to have got the indenture allowed both by the
justices of the particular jurisdiction, and by those of the general jurisdiction.
— [Littledalei J. — ^The 3d section of the act says, that the allowance of two
justices for the county shall be valid, though the place within which such
child is intended to be bound may be a place in which other justices have
exclusive jurisdiction.] — ^I'hat section does not apply to this case, for Witney ^
into which the apprentice was bound, has no such jurisdiction. There is
nothing here to show that the justices for the county acted for the city, on
the contrary, it appears that though entitled to exercise jurisdiction in the
city, the justices for the county do not qualify for that purpose. — [Patteson^
J. — But the city is within the county just as much as any other town in
Oxfordshire.'] — Yes, but the justices of the county do not appear generally
to act for it, and cannot do so in this instance.
LiTTLEDALE, J. (J). — As to the questiou whether it was necessary for the
respondents to prove notice of the apprenticeship to the parish of Witney^
that is decided by the case to which Lord Denman has alluded (e), and
which case, I think, was very properly decided upon the principle, that where
an act of a public officer appears to be good upon the face of it, it shall be
presumed that every preliminary act was done which was essential to give
validity to that act. It is very convenient that we should abide by that
principle. It seems to mc also that the other point is quite clear. The
justices who made the order and the allowance of the apprenticeship were
justices of the county, having concurrent jurisdiction in the city of Oxford
with the justices of that city. Both Wttney and Oxford then were places
within the same jurisdiction, and even if at Witney there were justices who
had exclusive jurisdiction, the allowance by the county justices would have
been valid by the third section, notwithstanding any exclusive jurisdiction. The
justices here would have had a different and limited jurisdiction^ if they had
(o) WilUami v. The East India Compamj, (c) 8 Bam. & Crcs. 772.
3 East, 192. (rf) Lord Denman, C. J., had left the
(b) 4 Dowl. & Ryl. 745, and 3 Bam. & Court
Crcs. 59. (e) Rex v. WhisUm, 1 Harr. & Wol. 696.
TRINITY TERM, 1836. 163
only qualified as justices of Oxford^ but they have the same jurisdiction in King** Bendi,
the two places, having qualified as justices for the county. v^v^<»
Rex
Patteson, J. — I have no doubt upon either of the points submitted to our ji^e Inhabitanu
consideration. When the Act of Parliament in the second section speaks of Witney.
of the place of residence of the party with whom the child is intended to be
bound as within a different county, or jurisdiction of the peace, it seems to me
that it must have contemplated a jurisdiction that was exclusive and alto-
gether different from the jurisdiction in which the place of the officers
binding is situate; and the third section provides that the allowance by
justices of the peace of the county within which the place in which the
child shall be intended to serve an apprenticeship shall be situated,
diall be valid and effectual, although such place may be situated in
a town or liberty within which any other justices of the peace may in
other respects have an exclusive jurisdiction. The justices who allowed
the apprenticeship in the present instance were justices having a con-
current jurisdiction with the justices of the city. With respect to the other
point, that has already been decided by a case within the recollection of the
Court, which was determined in Hilary Term last (a), I was not in the Court
in that term, but I fully concur in the correctness of the decision. As notice
was necessary for the purpose of rendering the order and allowance by the
justices valid in point of law, it is to be presumed, until the contrary be
proved, that notice to the overseers of the parish in which the pauper was
bound was given, and the production of the order and allowance is quasi
proof of itself of notice having been given.
Williams, J.— It is clear from this case, as stated (there being no state-
ment of any non intromittat clause with respect to the city of Oxford), that
the justices of the county of Oxford were acting both for Witney and for
Oxford, The words of the act are, " That in all cases where the residence
or establishment of business of the person or persons to whom any child
shall be bound, shall be within a different county or jurisdiction of the peace
from that within which the place by the officers whereof such child shall be
bound shall be situated, &c., every indenture by which such child shall be
bound shall be allowed as well by two justices of the peace for the county or
district within which the place by the officers of which such child shall be
bound shall be situated, as by two justices of the peace for the county or
district within which the place shall be situated wherein such child shall be
intended to serve." Here both the place of the binding officers, and of the
reiidenee of the party to whom it was intended to bind the child, were within
the same jurisdiction. With respect to the other point, as it would have
been an illegal act on the part of the justices to sign the allowance of the
indenture, unless it had been proved to them that notice had been given to
the overseers of the parish into which the child was to be bound, or unless
one of the overseers attended and admitted notice, the presumption of law is,
that the mi^ristrates did not make the order and allowance without having
>Qch proof before them.
Order confirmed.
(a) Rex V. WhUion, I Har. & Well. 696.
\
164 TERM REPORTS in the KING'S BENCH.
King's Bench,
TiBBiTTS, Assignee of Frances Thompson, an Insolvent,
V. George.
If A., in order /WSSUMPSIT, for inoney had and received. The cause was tried before
rfS?4;Li?^5 Mr. Justice Z^^^dia^, at the Spring Assiaes for Nartkampianshirt, in
to JB. all his in- 1835^ when it appeared, that in the early part of February f 1833, Mrs.
dToTfr^ ct*^u Is Thompsou applied to the defendant for a loan of money. She had formerly
not necessary that llved as housekeeper in the service of a person named Mercer ^ and had saved
notice of suXu- while in that service a sum of 400/. Mercer became a bankrupt in Fdrnuary^
Mgnment should 183!S| and upon his bankruptcy this appHcation for the loan was made. The
An assignment Solicitor to the fiat against Mercer was a person named Archhold, The de-
^^^lu^ "* fendant acquainted him with the application of Mrs. TkompsfM^ and requested to
need not be in know from him what was the probable amount of the dividend to be expected
writing, n«-, if c. ^.^^n McrccTs estate ; and was told that it would be about five shillinin in the
assents to the as- ' ^ o
signment, will the pouud, and that he might safely make an advance calculated on that amount.
i^re^e wh^e The defendant then agreed to advance Mrs. Thon^nan a sum of 1 00^ on her
transaction is assigning to him her interest in the dividend upon Mercer* $ estate. A sum
^ht toUiI^bt^ ^^ ^^^- ^^ advanced at the time. Mrs. Thompton afterwards became in-
assigned in the in: ^bted to the plaintiff, who in JtUy^ 1833, obtained a verdict against her, and
"^Thot^^e^' she was taken in execution in August of that year. She petitioned for her
debt assigned may discharge from prisou on the 1 7th of September ^ and all her estate and e£fects
be more than will ° .* !••«• 11 /»i/»i. n % •• «
cover jB.'s de- wcrc duly assigned to the plaintifi on the day of the nlmg of the petition. In
mand the exist- j jggg ^j^^ defendant advanced a further sum of 50/., and an authori^
ence of a resida- ' ' ... '
ary interest in it to receive the dividend was then given to him in writing by Mrs. Thonvpton.
!^nt the^4sti^ ^^ ^ugii^ a formal assignment of her interest in the dividend was executed.
of the assignment In November a dividend was declared upon Mercer* s estate, and the defondant
Mm a^ue for i^^ceived from his assignees the sum of SOL I7s, 6c/., the sum claimed in the
a:* assignees ; present action. The insolvent had stated in her schedule, filed in the In-
separate and in^ solvcut Debtors' Court, that the debt due to her firom Mercer had been
dependent. assigned by her to the defendant on the 5th ofAugust^ 1833, as security for
a debt of 105/. It was admitted that the written authority to receive the
dividend, and the formal assignment of it by Mrs. Thomptanf were void
within the Statute 7 Geo. 4, c. 57 f s. 32, she being at that time in insolveDt
circumstances, and the defendant relied on the parol agreement made at the
time of the loan, as an equitable assignment of Mrs. Thompson's interest io
the dividend, for valuable consideration then passing between the parties.
The jury found a verdict for the defendant, but the learned judge gave the
plaintiff leave to move to enter a verdict for the plaintiff for the .sum of
80/. 17s, 6d., if the Court should be of opinion that the agreement to pqr
out of the dividends was not an equitable assignment of those dividends to
the defendant. A rule havii^ accordingly been obtained for that purpose^
Adams, Serjt., and Humfrey showed cause. — This was a valid agree-
ment. It was made at the time that Mrs. Thompson was s<dvent, and was
made for a valuable consideration passing at the moment. The cases de-
cided on the statute are all cases where the security has been given within
three months of the insolvency, and in contemplation of it ; and to such
cases alone is the statute applicable. It does not apply here. This agree-
TRINITY TERM, 1836.
165
TlBBITTS
OXOROB.
ment was binding upon Mrs. Thompson at oonunon law, and the defendant King't Bcne^
could have maintained an action upon it.
Waddmgton and Miller^ in support of the rule. — ^No interest in the debt
passed by this assignment. First, the defendant was bound to give notice of
the assignment to the holder of the fund ; secondly, a parol promise will not
pass even an equitable interest ; and thirdly, the assignment did not pass all
the insolvent's interest in the fund ; the residue was still in her, and conse-
quently the legal interest in the fund passed to her assignees. As to the first
point, a debt due to the insolvent will pass to the assignee, although ic has
been as8%ned to a third party before the insolvent's imprisonment, if notice
of such assignment was not given to the debtor before such imprisonment ;
Buck V. Lee {a). No sudi notice was proved here. The prindj^e laid
down in Buck v. Lee, was acted upon in bankruptcy, in Es parte CoUill (6),
with respect to Life Insurance Policies.— [PoI^mm, J.*- And also in E»
parte Maberiy.^^In Watson v. The Duke of Wellington (c), all die authori-
ties on this point were referred to. There the Marquis of Hustings had
promised to satisfy a bond creditor out of his claim upon the Deccan prize-
money, and wrote a letter to Colonel Cole, the distributor of the fund, to
etkctuBte the promise ; but the Master of the Rolls held that this was no as-
t^nment, and treated the parol promise as nothing. On die authority of that
case the second point is made out, for diat case distincdy shows that a parol
promise will not pass even an equitable interest, so that if the insolvency of
Mrs. Thompson had not intervened, the assignee of Mercer would not have
been even an equitable trustee for the defendant. As to the third point,
even supposing that the parol agreement, at the dme it was made, gave an
equitable right to the defendant to claim payment out of diis fhnd from the
ass^inee of Mercer^ still, as at the ume of her insolvency, Mrs. Thompson
letamed a residuary interest in the fund, the legal estate in the fund passed
to her assignee ; Carvalho v. Bum (4), is decisive on this ^inU^-^Littledaki
J. — You contend then, that if this agreement had been properly executed in
1832, die fund would not have passed ?] — It would not. The authority of
Cmrvuiho v. Bum, which was affirmed in a Court of Error (e), has been dis-
tincdy recognized in Leisle v. Guthrie^ reported only in Hodges (/) — [Cole'
ridge, J. — Bat the intendon appears to have been to transfer the whole of
the fund, for the loan was calculated on the amount of the dividend.] — Still
whatever the intention was the whole would not pass. — [^PattesoUf J. — This
is not a quesdon between the assignee and the debtor, but between the
assignee and a creditor. Here the cestui que trust has received the money,
whereas you say the trustee ought to have received it. Is there any
avthority to show that the trustee can sue the cestui que trust under such
circonistances ?]— Yes, Carvalho v. Bum is an audiority. It is identical
with the present case. The defendant there was a creditor, who by virtue
of an assignment had an equitable interest in the goods, and yet the as*
s^jnees recovered. Best v. Argles (g) is also an authority to the same
(a) 1 Ad. & £11. 804.
(b) 1 Mont 110.
(e) 1 BOM. & MyL 602.
Id) 4 Sara. & Ad. 382.
^
0 1 Ad. & En. 883.
/) 1 Hodgw,83.
) 2 Cr. & Mee. 394.
$ TERM REPORTS ik the KING'S BENCH.
1^^ Bmck. poiBt. There the transaction was complete long before the bankruptcy,
N^^*^^ except in the payment over of the money. It ought, however, to be stated,
rtMcm iiuil in \f jf. Baron Bay ley's judgment in that case, he laid much stress on
the £ict that the assignment there was in respect of a past consideration,
though he did not state that, had the fact been different, the judgment of the
Court would have been altered by it. Row v. Dawson (a) is the only
authority which appears to be against the plaintiff, but that was a direct
transfer of the fund itself in respect of an advance of money made at the
time.
Cur, ado, vult.
Lord Denman, on the last day of Trinity Term, delivered the judgment
of the Court. — After stating all the circumstances of the case, his Lordship
said : — The first objection to the right of the defendant to retain this money
was, that it remained in the order and disposition of the insolvent for want
of notice of the assignment being duly given to the debtor or his assignee.
Secondly, that a parol agreement to allow the defendant to receive the divi-
dend would not pass even an equitable agreement ; and thirdly, that as all
the insolvent's interest in the fund was ndt passed by this assignment, but
she still retained an interest in the surplus, the right to the whole fund
passed to her assignees. As to the first point, we think it is not necessary
that a strictly formal notice should be given to the debtor, of the fact of the
assignment. Some notice is required, and in this case we think that there
was sufficient to prevent a fraud upon the debtor, which is all that the cases
upon this point have had in view. As to the second point, we do not think
that there must be an assignment in writing, in order to pass an equitable
interest; and as to the express assent of the debtor to such an assignment, it
has been held that it is sufficient if he does some act to recognise it, or does
not declare his refusal to conform to it. Ex parte South (6), and WilUanu v.
Everett (c). It is sufficient if the engagement by the debtor appears to be,
that a particular fund should be charged with the debt. In this case
the consent of Archhold might be treated as that of the assignee of Mercer,
Then it is said that the thing assigned would not pass, the transaction not
being in every respect completed before the insolvency, and Best v. Argles
has been cited in support of that argument. That case certainly approaches
nearly to the present, but it is not the same. There the executor absolutely
refused at first to act upon the assignment, and the bankrupt, after his bank*
ruptcy, received the money into his own hands, and paid it over to his
creditor. That circumstance makes a great difference in the case, and on
the whole we think that in that respect this case is free from doubt. As to
the third point, it does not appear to us that Carvalho v. Bum, as it was
treated, either when before this Court or before the Court of Error, is appli-
cable to this case. There the fund out of which the payment was to be
made was uncertain. It might never exist at all. Here the debt assigned
as a security was certain. The whole of the dividend, if it exceeded the
debt for which it was assigned, would not pass under the assignment, hut
would remain in the insolvent — therefore neither the plaintiff was trustee for
the defendant, nor was the defendant trustee for the plaintiff. The interest
of each was separate and distinct.
Rule discharged.
(a) 1 Ves. 331. (6) 3 Swaiut, 392. (c) 14 East, 682.
TRINITY TERM, 1836. 167
King*t Bench*
Rex v. The Justices of Cornwall. ^**^^^
A RULE had been obtained, calling on the Justices of Cornwall to show where a parish.
cause why a mandamus should not issue» requiring them to enter con- **? **^°f °®^*^®
11 1 ¥ -I 1 /ir. of appeal against
tmuances and bear an appeal. It appeared on the affidavits that Charles an order for the
Hakoso, who was settled in St. Gluvius, his wife, and her three children by chUdl^i.l^LTue
a former husband as part of the family of Hahoso^ were removed by an order of ^^ wife of a
from the parish of Penryn to St Gluvius. The order proceeded on the ex- SliJKIgef s*im^*'
amination of the wife, as well as of the husband, and the wife stated that her *^^ ^ ^^
former husband belonged to the borough of Penryn, and that by him she had SSll^^es'Sf^l
three children, who were under the age of thirteen, and lived with her and ^ii^ren.thefaa
her present husband, and had done no act to gain a settlement in their own under thirteen,
right. The order then set forth the names and description of the children, "***. h'S'thkh
** WilUamy Azimuth, and Emily , the son and daughters of the wife of the said they were setued;
Charles Halvoso, by a former husband, neither of whom has gained a settle- J,"^^ "ufficie™
ment in his or her own right.'* Notice of appeal was given by the parish of under sec. si of
St. Ghivhu, and after giving the names and ages of the children, the notice ^^76.^ * ^'^' *'
stated as a ground of appeal, that they " are and each of them is now settled
in the said borough of Penryn" The Quarter Sessions confirmed the order,
having refused to hear the evidence tendered on the part of the appellants,
because it was not stated in the notice of appeal how the children named in
the order of removal were settled in the borough of Penryn.
Archbold showed cause against the rule for the mandamus. The notice of
appeal is not sufficient within the 81st section of the statute. It ought to
have stated in what right the children were settled in Penryn, so as to
enable the respondent parish to be prepared on the question really intended
to be raised at the sessions. It did not state whether the settlement was
that of their parents, or by birth, or hiring, or service, and that parish had
DO means of knowing how to meet the charge intended to be fixed upon it.
—[fVilliams, J. — Did it state the names and ages of the children ?] — It did.
If the settlement of the children was derived from that of the father, there
should have been a statement what his settlement was.
Sir W. FoUett, in support of the rule. — The sessions were bound to
bear this appeal. The statute requires ** a statement of the grounds of
appeal," but not of every circumstance connected therewith. The notice
most be construed with reference both to the examination of the mother and
to the order against which it is an appeal. If that is done the grounds of
appeal are most clearly intelligible, and the parish could not be taken by
smprise. The examination and order show that there was but one mode
by which the children could be settled in Penryn. The question intended to
be raised was, which of the two parishes was to be at the expense of main-
taining the children while they continued, under the 57th section of the new
act, to form part of the second husband's family, and the notice is sufficient
to raise that question.
Ixnd Dbkkan, C. J. — It appears to me that this rule must be made abso-
hite. The justices have declined hearing evidence which was necessary to
158
TERM REPORTS or m KING'S BENCH.
Kit^t BmM. f <^e a very important point, upon which the appellants were anxious to take
v^v^/^ the opinion of the sessions. The statement of the notice which the sessions held
^^ to he insufficient was, that the children were settled in the borough of Penryn.
The Justices of ^'^ W, FoUett has argued, that taking the examination upon which the
CoBNWALi.. justices made their order with the order itself, and with the ground of appeal
stated, there could be but one mode in which the children could by poanbility
be settled in Penryn. But without putting it upon that ground, with which
we do not quite agree, it appears to me that sufficient infbrmatioii is given
by the notice itself. It is quite sufficient that the ground of notice aa stated
calls the attention of the adverse party to the fact of the pauper being settled
in a particular parish, so as to enable them to inquire whether there le any
foundation for the supposition that he is settled in that place. The p<Hnt,
therefore, was properly raised upon this notice of appeal, and the
ought to have heard and decided it.
LiTTLEDALB, J. — I am of opinion that the notice of appeal in this
was sufficient. Before the new act it would have been sufficient to have
given notice of appeal generally, but that act requires that the grounds of
appeal should be stated. By giving notice, and stating as a ground of appeal
that the pauper is settled in a parish, it appears to me that the appellants
have sufficiently complied with the requisites of the statute.
Pattesok, J., and Williams, J., concurred.
Rule absolute.
Awritofattach-
meut against B,
issued from tlie
Court of Cktmeery
at the suit of A,
The 8heri£f at-
tached B. by his
body. B, was
disdiarged from
custody as privi- .
leged from arrest.
In an action upon
the case hy A.
ag^nst the sheriff
for a negligent
discharge of hto
duty, A. must
state predsely the
nature of the pri-
vilege which pre-
vented the ordi-
nary duty of the
sheriff from at-
taching with re-
gard to B., and
for want of such
statement tiie de-
claration will be
bad on general de-
murrer.
Qumn, whether
an action can be
maintained at all
by A. against tiie
sheriff, under such
cixcamitances.
Lloyd v. Wood.
^ASE against the Sheriff of the county of Northampton. The
stated, that before and at the time of makii^ the order and committii^
the grievance thereinafter mentioned, a certain suit and cause had been
brought, and was then pending in His Majesty's High Court of CAancery,
wherein one Frederick Tertms Jeyes was plaintiff, and one Robert Fore/mm
and the now plaintiff were defendants ; and such proceedings had been and
were had in that suit and cause, that on Sic, it was by a certain order
directed that the said F. T, J. should, within three days after service of a
writ of execution of that order, to be verified by affidavit, pay into the bank,
with the privity of the accountant-general of that Court, to be there placed
to the credit of the cause, certain sums therein specified ; that the time for
payment was by subsequent orders extended, and that for the purpose of
having execution of the order, the now plaintiff caused to be sued and pro-
secuted out of the Court of Chancery a certain writ, &c., directed to the said
F. T. /., enjoining and commanding him to perform all matters and things
mentioned in the order, &c., which writ of execution was afterwards, to wit,
on &c., personally served on F. T. J, That the said F, T. J* did not nor
would comply therewith, but wholly neglected and refused to do so ; that
thereupon the plaintiff did afterwards, to wit, on &o., verify the service of
the writ of execution by affidavit, sworn before a Master Extraordinary in
Chancery, &c., and the plaintiff did, to wit, on &c., cause to be sued out a
writ of attachment against F, T, /•, directed to the Sheriff of the county of
Northampton^ &c.y which said writ of attachment was delivered to the de«
TRINITY TERM, 18S0. 159
ftndaiit (Uie sheriff), and thereupcm it became and was the duty of the said Kii^*t Bench.
d^ndant, as such sheriff, to execute the said writ in a caredil and proper v^v^/
maaiier ; yet the defendant, not regarding his duty in that behalf, aftenmds Lloyd
and belbve the return of the said writ of attachment, to wit, on &c., as such Wood.
Am&, wrongfully, carelessly, and improperly, and against the consent of the
pUntifli attached the said F, T, J. by his body, under colour and in execu-
tion of the said writ of attachment, he the sakl F. T. J, being then privi-
leged and protected from being so attached, and the defendant well knowing
die pvemiaea ; and the defendant as such sheriff kept and detained the said
P» T. J, m his custody under the said attachment, and under colour and in
execution of the said writ of attachment, from thence until and at and after
the return thereof, to wit, on &c., when the said F. T. J, applied for his dis-
diarge out of the custody of the sheriff, for and by reason and in conse-
({Beiiee of the said F, T. /. having been so attached as aforesaid, at a time
when he was privileged and protected therefrom, and an order was accord-
ingly made for his discharge. And by means of the premises the plaintiff
lost and was deprived of the benefit of the said writ of attachment, and was
ddayed and hindered in forcing and compelling F, T. J, to pay the sums, as
by the said writ and order he was commanded, and that the said money was
not paid into the bank to the credit of the accountant-general in the said
ctuaey and the plaintiff was put to and incurred great costs, charges, and
I, amounting to 100/., and was obliged to take divers journeys^ and
pot to great trouble and inconvenience in and about the causing to be
inued another writ of attachment, and was also compelled to pay the costs of
oppoaing the discharge of F. T. /., &c.
XViifri'gr, showmg for cause that it is not stated in the declaration whether
the defendant was directed to attach the said F, T, J. by his body or by his
gooda, nor does it ftilly set out the writ, or show sufficient for the Court to
lay whether the sheriff was bound under the writ to attach the said JP. T, J,
by hia body or goods, nor in what respect the said F, T, J, was privileged,
€f that defendant acted maliciously.
Jitmier in demurrer.
Peaeockf in support of the demurrer. — The declaration here is insufficient*
The action itself being an action not by the party claiming privilege, but by
the party issuing the writ, is of the first impression, and there is no authority
to show that such an action can be maintained. In Tarltton v. FUher (a), it
was held, that a sheriff or his officer is not necessarily bound to take notice
of an alleged privilege. The plaintiff there was the party claiming the
privilege. Cameron v* Lighifooi (h), and Croslnf v. SIkm (c), were there
cited. The question of privilege is a question of law arising upon matter of
fiwtyand the fkct ought to be properly stated in order to raise the question of
law (d). — [Lord Demnan, C. J. — Has there not recently been a case of this
kind decided in the Exchequer, under the name of Stokes v. WkUe (e) ?]
—There has, but there the party suing was also the party claiming the
privilege. If the facts had been properly stated on the pleadings, the
(m) D»m. 671. Strata Mareella't cus 0 Co. 35,
h) 2 Sir W. Bl. 1190. (e) 1 Crom. Mee. & Rose. 223 ; and 2
(c) Id. 1085. Dowl. Prac. Cas. 703.
(i) 1 ChittjT on Pleading, The Abbot of
leD TERM REPORTS in the KING'S BENCH.
aUi^ J ikiuik. defendant might have raised the question whether the facts stated amounted
v^^.'W to a privilege in point of law. That question cannot be raised now. On
Llo« i> ^ £^ q£ ^^^ declaration it does not appear that the defendant was entitled
WgoiK ^ ^^^ money ordered to be paid into Court. It is not necessary to raise these
objections by special demurrer, for the declaration is substantially defective.
In Hooker v. Nye (a) a replication, intended to assert a special right in the
plaintiff, was held bad on general demurrer, for not setting forth all the facts
on which that right was to be founded. Again, the declaration is objection-
able, because it does not appear that the plaintiff suffered any damage in
consequence of the sheriff doing any thing which he need not have done ; as,
for instance, it is not stated that there ever was a moment when the privilege
of Jei/e8 ceased, and he could have been attached. As to the second ground
on which damages are claimed, it is clear that that part of the plaintiff's
demand is not maintainable. The plaintiff says that he incurred expense in
opposing the discharge of Jeyes, If the arrest was wrong, he should not have
opposed the discharge. By opposing it, he ratified what had been done in
the arrest.
Kelly, in support of the declaration. —This is not an action of trespass,
but on the case, and it is brought against a public officer for negligently
performing his duty. It is, therefore, clearly maintainable, for the sheriff is
bound to perform his duty in a careful manner. The statement on the record
amounts to this, that the sheriff, at the time of the arrest, knew that Jeyes was
privileged. The declaration is sufficiently precise to fix the defendant. It
states a series of facts, and then alleges that the defendant, well knowing the
premises, wrongfiilly caused Jeyes to be attached by his body. Cameron v.
Lightfoot is hardly applicable to the present case. But Stokes v. Wfdte is a
clear authority for the defendant. That was an action against the person
who had innocently issued the process, and the Court there said, that if any
person was liable die sheriff was the person. Tarleton v. Fuher which was re-
ferred to in Stokes v. JVhite, shows that where there is any doubt as to trespass,
case will lie. Stokes v. White is also an authority against the argument now
put forward, that by resisting the discharge the plaintiff affirmed the arrest.
Both Lord Lyndhurst and Mr. Baron Parke clearly expressed their opinion
that the plaintiff could not be affected by the wrongful act of the sheriff.
The real complaint here is, that, well knowing the fact, the sheriff wrongfully
executed the writ of attachment, and the plaintiff is clearly entitled to all the
damages he suffered in consequence of such wrongful act.
Lord Denman, C. J. — It clearly appears to me that this declaration is
bad. The allegation that the party was privileged from arrest, has no
meaning at all. It only amounts to this, that the person using the expression
has something in his mind which he thinks amounted to a privilege enjoyed
by the party attached by the sheriff. There is nothing more doubtful than
the facts which constitute privilege. The facts imder which the privilege in
this case is supposed to have arisen, ought to have been set forth, that the
Court might have judged whether the party was privileged or not. For
want of such a statement of facts, there does not appear on the record any
(a) I Crom. Mee.;[& Ros. 258.
TRINITY TERM, 1836. 161
foundation at all for the action. The declaration also appears to me to be Kifig*t Bendt,
defective in not stating precisely what interest the plaintiff had in the money, v^\^^
and that the plaintiff had an interest in the detention of this party; for it is Li'Oyd
not sufficient to show that he was the person against whom the plaintiff had Wood.
some claim in the Court of Chancery, and that he was in contempt. It
should also have been shown that the attachment was the means by which the
money ordered to be paid into Court would have found its way into the
pocket of the plaintiff*. There are other objections to the declaration, but on
these which I have noticed, it appears to me that there is an absence of any
substantive statement of a cause of action, and that the judgment must,
therefore, be for the defendant. '
LiTTLEDALE, J. — I think that this declaration is bad upon general de-
murrer, in not stating what the privilege of Jeyes was. There is an infinite
variety of ways in which he might be privileged, and there are many cases in
which the privilege might be doubtful* The declaration ought to have
stated the way in which the supposed privilege existed, in order that we
might see whether the party was entitled to it or not, and in what respect
the sheriff had acted wrongfuUy. That ought to appear clearly, for it is a
duty cast on the sheriff to execute all writs directed to him, and the plaintiff
should show precisely in what way the sheriff has neglected that duty. It is
not clearly shown that there was any distinct cause of action arising to the
plaintiff from the conduct of the sheriff.
Patteson, J. — I am also of opinion that the declaration is bad, for the
reasons already given. The sheriff had a right to expect the plaintiff to put
upon the declaration a statement of what the privilege was, for the party
might have had a right, notwithstanding the discharge, to get all the benefit
of the attachment. The present defendant had also a right to have placed
upon the record the nature of the privilege, in order that he might traverse
inch facts as were alleged to constitute it, or take the opinion of the Court
whether, under the facts stated, any such privilege existed. For these
reasons I think the declaration bad. I do not say that it is not bad for other
reasons. The action itself is prirnct impressioniSi and I doubt very much
whether any such action as this will lie at all.
Williams, J. — I am of the same opinion. It was primd facie the duty of
the sheriff to take the party, and the plaintiff, in order to charge the sheriff
widi negligence in the execution of that duty, was bound to show the nature
of the privilege which the party had, that would prevent the ordinary duty
of the sheriff from attaching with respect to him; nothing of that sort appears
on the face of this declaration.
Judgment for the defendant.
yOL. 11. M
162 TERM REPORTS nr the KING'S BENCH,
Kmg's BeneK
Doe d. De Rutzen v. Lewis,
A lease conuined piJECTMENT as upon a forfeiture for a covenant broken. — ^The cause
ufrepair,*^*S?o was tried before Mr. Justice Williams at Carmarthen^ when a verdict
• special covenant found for the plaintiff, with leave for tlie defendant to move to set it
by whkb the land> * .mii /%ii««iii
lord was empov- asidc, and enter a nonsuit. The day of the demise m the declaration was
ered to enter and ^ ^^^ Q^ November, 1831. The lease contained, amongst other covenants,
view the premises, ' . . i i
and to give notice a covcuant to repair and to yield up in repair ; and it was also covenanted
toe^^ra wt!f that it might be lawful for the lessor, his heirs or assigns, &c. with workmen
not made vrithin or without, at all Seasonable times during the continuance of the demise, to
enu?^a ^oTO enter and come into and upon the demised premises, &c. to view, search,
tiiem, and charge j^d scc the State and Condition thereof, and upon every such entry, if he or
the exi^nses, and they should think fit, to give or leave notice in writing at the premises, &c
distrain for tbwa ^f ^ dcfccts and want of reparation then and there found, and in case the
lease contained a Icssec, &c. should within two months afler such notice neglect or refuse to
gener^^covemmt^ repair, it should and might be lawful for the lessor, &c. to enter upon the
of the non-per- premises and do such repairs as he should think necessary to be done, and
'^edTng^^c^^ that the lessee^ &c. should and would repay the lessor, &c. so much money
venaut as to as should be expended by him for work and materials in doing such repairs,
Sc ianS*o!d gave ^^ *^® t'"^® whcn the ncxt half year's rent should become due, after such
noUce of repairs, money should have been so laid out and expended, with a power of distress
made^he tiien ID casc of ncglcct or refusal to pay, as in case of rent in arrear. The inden-
gave notice, under ^^^6 also contained a general clause of re-entry in case of the non-perform-
the special cove. **i iii m . .i
nant, that if not ancc of any of the covenants by the lessee. Two notices were given to the
^I^ttale he defendant. The first was dated 10th July, 18S0, and was given by the
should enter and agent of thc Icssors of the plaintiff in the following terms : — ''-Take notice,
^ll^e'^'tenant ^*' °^ ^^ rcccipt of this notice you are required to fulfil all and every thc
with the expenses, covenants contained in your lease or leases granted to you of the messuage,
not repair, and Uie tenement^ and lands called Murven House Farm, and that in case of your
landlord after- neglecting in anywise so to do, all and every building, hedge, &c, will be
ejectmedt under put in covenanted order and repair for you, and you will be charged with
^t of^^^ the costs thereof, &c. ; or should there be any further breach of covenant,
--fi«M, that he that It wiU affect the existence of your lease or leases.'* Some negociations
undw^heti^il? *^^^ P^^^® between the parties, and on the 21st of November, 1830, another
covenant, waived noticc was given rcciting the former and the non-compliance of the tenant
rat^^uidcr uie ^^^^ >*> ^^ requiring him '* to repair the hedges, gates, and fences on the
general covenant, gaid premises On or before the SOth of December next, and the houses,
feiturefor uoia. officcs, and Other buildings, on or before the 3 1st of May next, and in the
repair. event of your neglecting to make such repahrs at such respective periods,"
that the lessors would enter and make the repairs accordii^ to the proviso
in the lease. The defendant objected at the trial that the special notice of
November, 1830, gave the right to the lessor to enter upon the premises for
the purpose of making the repairs, and would enable him to recover, by way
of distress, from the defendant the expenses thereby incurred, but that it
operated as a waiver of the forfeiture. A verdict was taken for the plaintiff,
subject to this objection. Other objections were taken, and were afterwards
argued, but the decision of the Court proceeded upon this question alone,
TRINITY TERM, 1836.
163
and to dns qaef tion alone the report will therefore be confined. A rule '^v^'* Bench.
having been obtained to enter a nonsuit,
WiboHf ddkon^ and James showed cause. — The objection here is, that
the plaintiff* proceeds under the general covenant for a forfeiture, after having
given notice under the special covenant to repair. The notices do not
amount to an election to proceed under one covenant, so as to bar the
plaintiff* from the right of proceeding upon the other. The covenants are
cumulative, and independent of each other. The notice of the want of
repair was necessary to give the plaintiff a title to do anything, but that
notice does not affbct the right of entry, which is general in its terms, '* pro-
vided that if the lessee and his heirs do not keep all and each of the cove-
nants herrinbefiore contained, &c., then in each and all of the said cases it
flhall be lawful lor the lessor to re-enter." The covenants are cumulative,
according to the authority of Wood v. Day (a). In Roe d. Goatley v.
Ftune (6), there was a lease with a clause of re-entry, and there was also a
general covenant on the part of the tenant to keep the premises in repair ;
and it was further stipulated by an independent covenant, that the tenant,
within three months from notice being served upon him by the landlord,
ihoold repair all defects specified in the notice ; and it was held that the
kndlord might within the Uuree months bring an ejectment against the tenant
for a breach of the general covenant to repair. That case is stronger than
the present, for the ejectment here was not brought till after the notice to
repair bad expired, and the repairs remained miperformed. This case is not
opposed to the rule in Doe d. Morecraft v. Meux (c), where in a lease
smilar to the present, and where the landlord had given a notice to repair,
it was held that he could not bring ejectment imtil after the expiration of the
three months mentioned in that notice, for that case shows that he might
bring ejectment after the expiration of the notice. In tliat case Mr. Justice
BayJef distinctly stated, that *^ the landlord had an option to proceed on
d^er covenant." A distress may be admitted to be an absolute affirmance
of a tenancy, yet in Doe d. Flower v. Peck (d), where a lease contained
fifierent covenants on the part of the lessee, and a proviso for re-entry on
die breach of any of the covenants, and a covenant to insure was broken, the
lessor distrained on the 30th of September for rent then due, and afterwards
brought an ejectment on a demise of the 24th of October ; and the Court held,
Aat though the distress was an acknowledgment of the tenancy to the dOth
cS SepiembeTf and a waiver of any forfeiture to that time, yet the lessor was
entitled to recover in ejectment for the forfeiture incurred by the breach of
eofeoant between the dOth of September and the 24th of October. In the
present case the omission to repair, during the period stated in the notice,
smoonted to a forfeiture at the end of that notice, for which ejectment could
then be maintained.
Doe
d.
De Rutzxn
V.
L£WI8.
Jcihn Evans and F. WilUamst in support of the rule. — This ejectment
eumot be supported. The case of Doe d. Morecraft v. Meux, is an
aotbority decisive on that point, for it was there distinctly held that the
M 7 Tsimt. 646.
W S Camp. 530.
i
c) 4 Barn. 6c Cress. 606.
d) I Barn. & Ad. 428.
m2
164
TERM REPORTS in the KING'S BENCH.
Dob
d.
Ds RUTZSN
V.
Lewis*
King't Bench, notice to repair was a waiver of the forfeiture for non-repair. Here, too,
there were negociations after the notice, and the proceeding on a forfeiture
being an enforcement of a strict right, cannot be permitted if the landlord
has done any thing which is inconsistent with the strict enforcement of
such a right. The notice to repair and the negociations were so here. —
[PaUesout J. — Where a right to enter upon a forfeiture has been suspended
by agreement between the parties, the landlord may afVerwards take
advantage of it ; Doe d. Rankin v. Bnndley (a).] — But here the right to
re-enter was more than suspended — it was abandoned. After the notice,
the tenant had a right to say, " I shall not repair the premises, for my
landlord will repair them, and I shall pay him the expense." The notice
led the tenant to neglect the repairs^ which he had a right to believe would
be executed by his landlord. The landlord bound himself by this notice to
repair the premises, which he should have done, and for the expense thus
incurred he might then have maintained an action against the tenant. He
did not do so, and he now brings an ejectment for non-repairs which he
himself occasioned by his own notice.
Lord Denman, C. J. — In this case it is not necessary to enter upon any
question but one of those raised in argument, namely, the question of the
waiver of the forfeiture. The clause under which the plaintiff seeks to
obtain possession of the premises, is that which provides that upon a breach
the lessor shall have the right to re-enter. The lessor here says, that the
premises were not kept in repair, but then attached to the covenant to repair
is a qualification by which the lessor is provided with a certain remedy ;
namely, he may give two months' notice to repair, and if the premises are
not repaired, he may repair them and charge the expenses against the
tenant, and may distrain for such expenses as for rent in arrear. Suppose
that he takes that upon himself, it appears to me that that is a waiyer of the
forfeiture. Now the lessor in this case has taken this upon himself. On
the 10th o^July, 1830, the lessor, by a formal notice, called on the defendant
to repair. — (His Lordship read the notice.) — So that here the landlord has
said, *' In case of your neglect to repair, I shall repair for you, and you will
be charged with the expense of it." This notice expired in September^ 1830.
No advantage was taken of it, but on the 21st of November in that year, this
further notice was given — (His Lordship here read the second notice.) —This
notice was to expire, as to the hedges, gates, and fences, on the 30th of
December, and as to the houses and buildings on the 31st of May. — ^This,
therefore, was an extending of the time within whicli the lessor gave the
tenant leave to repair the premises, and was a distinct notice that if he did
not repair them, the lessor would make the repairs, and would charge him
with the expense. The tenant therefore was put in a situation in which he
would otherwise not have been, and in which he never can be again, for he
was not able to do what the lessor said he would do for the tenant, and in
waiting for the lessor to do what he said he would, the repairs might become
more and more necessary, and yet the tenant could not make them. It does
not appear that the lessor told tlie tenant, within tlie time specified in the
notice, that the lessor would not do the repairs. Nothing of that sort
(a) 4 Barn, k Ad. 84.
TRINITY TERM, 1836.
165
appears, unless at a much later period, when it was intimated to the tenant, King*i Bmuh,
that if he did not begin to do these repairs within three days, he should be
held to have forfeited the lease. The lessor having thus waived the right he
possessed, cannot now insist on the forfeiture on this short notice — he cannot
take advantage of this covenant, for he has chosen to act upon the other, and
to take the remedy into his own hands in a manner inconsistent with his
taking advantage of the forfeiture. 1 am, therefore, of opinion that there
has not been such a breach of the covenant as to entitle the plaintiff to enter
as upon a forfeiture.
Dob
d.
Dz RUTZEN
V.
Lxwis*
LiTTLEDALE, J. — I am entirely of the same opinion. The landlord has,
by acting on the latter part of the covenant, waived his right of re-entry.
He has told the defendant that he will make the repairs, and might, there-
fore, be justified, under the provisions of the lease, in doing so ; he would
be authorized to make the repairs, and might make them more efficient than
the tenant would have done. \Vhatcvcr was reasonable in the discharge of
the power thus reserved to the landlord, he would have had a right to
charge against the tenant. Having' that power, and having claimed to act
under that power, he must be taken to have waived the forfeiture; his
remedy is pointed out by the lease itself, and by insisting on his right to
repair, and to charge the tenant with these repairs, and to distrain for them,
he has given up the right of re-entry as for condition broken.
Patteson, J. — I entirely agree with the rest of the Court, as to the effect
of this notice. The lessor of the planitiffhas waived his right to a forfeiture.
On that ground the rule must be absolute. Roe v. Paine {a), is only a case
to show that the covenant was independent, but there was the word " forth-
with" in that case, and that was relied on in the judgment. In Doe d,
Meux (b)f Mr. Justice Bayley did not say that there was a waiver of the
fiv&iture, but Mr. Justice Holroyd said that there was ; but that case goes
farther than the present. In Doe d. Rankin v. Brindley (c), the ejectment
bad been brought before the time, but after that the landlord accepted rent.
He did so on the 25th of March, but there was again a forfeiture afler that,
md that forfeiture was not waived ; and then another ejectment was brought
hr not repairing within three calendar months, and the Court said that the
gectment would lie on this forfeiture, and refused a rule to show cause why
the verdict for the plaintiff* should not be set aside. In this case the time
WIS not enlarged for the benefit of the defendant, but the lessor says, ** I
have a right to take advantage of the covenant in the lease by which you are
bound to put the premises into repair within two months afler notice, and I
am at liberty to enter, and to put them into repair, and to charge you with
the expense, and you must pay me this expense at the same time as the next
half year's rent, and if you do not, I may distrain for the expense as for the
rent." When the landlord says in this manner that he will repair, the tenant
•ayiy ** well, I will let you do so/* The relation of landlord and tenant, so
hx from being put an end to by this notice, is afBrmed by it, and the landlord
pots the tenant into a totally different situation from that in which he would
i
(a) 2 Camp. 520.
(6) 4 Bora. & CreM. 606«
(c) 4 13arn. & Ad. 8t
166 TERM REPORTS m the KING'S BENCH.
Kwg*s Bench* have stood liad no such notice been given. I say nothing of the other points
*^^ — *this one is sufficient to decide the case.
Doe
d.
Dfi RuTZEN WiLLUMs, J. — I am entirely of the same opinion. Under the provisions
Lewis. ^^ ^^^^ particular lease, the landlord by his notice takes advantage of one of
two remedies, which are, to a certain degree, inconsistent widi each other.
The remedy by the power of entering upon the premises and repairing and
indemnifying himself for the expense by distress, had tlie necessary and
natural effect of suspending all repairs on the part of the tenant, and if^ after
availing himself of this power, the landlord might treat the tenant's omission
to repair as a forfeiture, he would be proceeding against the terms of the
lease, and taking advantage, by way of forfeiture, of a ne^^igence which his
own notice might have occasioned. The landkurd cannot have reooune to
both these inconsistent remedies.
Rule for a nonsuit absolute.
The Rev. John Vere Alston, Clerk, v* BenjamihT
Atlay.
Where the holder y^EBT, on the 2 & :) Edw. 6, c. 13, for not setting out tithes: — Pka^
dellsd^thft liviflg" (bcforc the new Rules) the general issue. The plaintiff was the rector
voidable by the Qf CotDshy^ in the county of York ; the defendant was a £urmer in the same
other, but no pro- parish. The cause was tried before Mr. Baron Parke at York^ in the Spring
ceeding has been Assizcs, 1835, whcu a vcrdict was found for the plaintiff, for the sum of 61.,
taken to avoid it,. ,*
the right of being treble the value of the tithes, subject to the opinion of die Court on
JITl^^a'***""^ the following case :— The rectory of Caashy is a benefice under the value of
chaser by the con- eight pouuds in the King's books, and the plaintiff was instituted and in-
Idr^Mn/wd ducted into it in the year 1816, and duly subscribed and read the articles*
sach purchaser For many ycars after the plaintiff became the rector of Cawsby as afinesaid,
the^iiving,^an7° ^hc defendant, who was a farmer there, regularly paid his tithe to the plain*
present his own tiff, as die rector. and contmued to do so down to MichaelmaSf 1832. The
defendant did not pay the tithe to the plaintiff claimed by him in the year
1833, nor did he set out the same, although the defendant had received doe
notice on behalf of the plaintiff to set out his dthe in kind, but the defendant
did not pay the said dthe, or set it out, in consequence of the same being
claimed by the Rev. George Wray^ and the defendant carried away his
crops during the year 1833 without setting out his tithes, which were of the
value of two pounds, and there being no composition or agreement with the
plaintiff for the tithe. In 1829, the plaindff was instituted and inducted into
the rectory of Odelly in the county of Bedford, being distant one hundred
miles from the first-mentioned rectory, upon the presentation of his brothefi
and subscribed and read the articles. Odell is a benefice with cure of souls,
of higher value than eight pounds in the King's books. In 1831, Justmum
Alston, Esq., the brother of the plaintiff, who was owner of the manor of
Cowsby, and of an estate there, and patron of the rectory of Cawshyf sold the
manor and estate, and the advowson, right of patronage, and presentation of
and to the rectory or parish church of Cowsby, to George Lloyd, Esq., and
the same were conveyed to him by indentures, bearing date the !IS7th and
^8th of November, 1831. In the year 183^, Mr. Lloyd then thinking diat
TRINITY TERM, I83G.
167
(«)3 Burr. 1604; 2 Will. 174; and 1
Wb. BL 490.
(») 3 Cruise Dig. 29.
(r) 8 Bur. 1512.
(d) 7 Barn. 6c Cress. 113.
(e) 1 Dow 6c Clark, 416; 3 Bligh» 123;
6 Biog. 1.
Alston
V.
Atlay.
the rectory of Ccmtby had become voidable in consequence of the acceptance King* Bmeh.
by the pluntiff of the rectory of Odell^ and that he, Mr. Lloydy had a right to
present a clerk to the rectory of Cowsby, presented the Rev. George Wray
to sudi rectory, and in pursuance of such presentation the said George Wray
was instituted and inducted into such rectory, and read and subscribed the
articles ; but it is contended on the part of the plaintiff, that such presenta*
tioo, institution, and induction, were merely formal, and of no effect. It was
agreed that the parties should be at liberty to refer to the pleadings, and to
cc^iet of the indentures of the 27th and 28th of November, 1831, as if the
same were part of the case. The question for the opinion of the Court was,
whether the plaintiff, under the above circumstances, was entitled to maintain
die action ? If the Court should be of opinion that he was so entitled, then
die verdict to stand, otherwise a nonsuit to be entered. And it was further
i^eed, that either party should be at liberty, with the consent of the Court,
to turn the case into a special verdict.
Wightman, for the plaintiff. — The acceptance of this second benefice is
said merely to make the first benefice voidable, not void. But if it is
TCttdable it cannot be sold, for voidable and void arc for this purpose the
same. On the other side it is contended that the living is void or voidable,
at the option of the patron. That argument cannot be supported, for then
it would be in the power of the patron to evade at his pleasure the laws
against simony. In principle void and voidable must be considered the
same thing. A voidable benefice is a chose in aciion, and cannot be sold.
A grant of an advowson, after the church is actually vacant, is void, and the
l^ae occurs afler induction to a second benefice ; Bishop ofUncoln v. Wol"
forttan (n). The reason given for the judgment of the Court in that case is
stated in BlachUme^s Reports to be as well for the danger of simony as
because the grant would be a grant of a chose in (Ktion, In like manner a
nght of entry upon a forfeiture cannot be assigned. — [Patteson, J. — How
would that be in the case of a reversioner ?] — He would come in upon a
previooaly existing right. The summary of Tlie Bishop of Lincoln v. IFol-
Jordan^ as given in Cruise's Digest (6), is, " In a modem case the Court
of Kmg'i Bench resolved, that a grant of a next presentation, or of an ad-
Towson^ made afler the church was actually fallen vacant, was a void grant
fmktd the faUen vacancy ;" and in the report in Burrow, Lord Mansfield and
Mr. Justice Wilmot say (c), " the reason is the public utility, and the better
to guard against simony, not the fictitious reason of its being then become a
dote im action." — [Patteson, J.— The word * advowson* is incorrectly used in
that case. The presentation is not a part of the advowson. It was so held
in Rennett v. The Bishop of Lincoln ((f).] All the disadvantage which can
be contemplated where die living is actually vacant, arises where it is
voidable at the option of the patron, for the patron may instantly make it
toid by presenting his clerk. Fox v. The Bishop of Chester (e), will be relied
upon by the other side. But there the House of Lords acted upon circum-
stances which showed that the question of void or voidable was not to be
168 TERM REPORTS in the KING'S BENCH.
King*s Bench, decided by the patron, but by circumstances over which he liad no control ;
v^s/^^ and where these existed it was considered that the mischief was not so likely
Alston to arise. This is a vacancy by cession (a), and though the patron might
Atlay. ^®^® presented, he cannot sell. In this case he has not presented, and as
between the parson and the farmer the church is full, and the farmer is
liable for his tithes.
Tomlitison, contrd, — There is no decision which touches the present case.
In all the cases the expression * voidable' is improperly used as if bearing tlie
same sense as void. There is a great distinction between the two things.
The patron is bound to take notice of the act of the clerk, and if such act
affects the benefice so as to make it vacant, he must present within six
months, or a lapse will occur ; JVinchcombe v. The Bishop of fVinchester (6).
There is no dispensation in this case, and the right to present does not
depend upon the statute, for the living is below eight pounds, and the right,
therefore, depends on the canons, so far as they have been recognized in our
law. The cases show that where one living is under eight pounds, an ac-
ceptance of another does not avoid the first till some act be done by the
patron. It is only void at his election ; Armiger v. Holland (c), Dightfi
case ((/), Shute v. Higden (e), Watson's Clergyman's Law {/), and Gibson's
Codex (g). In Halton v. Cove (h), all these authorities are cited and recog-
nized, and in that case circumstances like the present were held not to con-
stitute an actual vacancy. The only authority cited on the other side, as
seeming to bear out the proposition contended for by the plaintiff, is The
Bishop of Lincoln v. IVolforstan, Rennell v. The Bishop of Uncoln has also
been ;nientioned. Neither of these is in point. In the first the living was
above eight pounds a year, and in the other the living was actually vacant.
It is admitted that there would have been a continuing right in Alston if he
had not sold. Suppose, then, that he had died, would his heir or his executor
have had the right to present ? In Mirchouse v. RenuelKj), the name under
which the case of Rennell v. The Bishop of Lincoln was decided in the House
of Lords, it was held by that House, that, as the living was actually vacant
before the death of the prebendary, the right of presentation passed to his
heir, but the strongest disinclination was expressed by their Lordships
against giving such a right to the personal representation, and it would not
have been given to him if the living had been merely voidable, and not void.
If the patron here had died, and devised the advowson, the right of pre-
sentation would undoubtedly have passed to the devisee. Yet in law the
devisee is as strictly a purchaser as he who purchases the estate for money.
The mere fact of the payment of the money cannot make all the difference
in the rights of the parties. There is nothing here to show a simoniacal
contract. The whole objection rests on the ground of tendency. That
ground was repudiated in Fox v. The Bishop of Chester, when before the
House of Lords (Jc), and the judgment of their Lordships proceeded on the
Ca) Fiu. N. B. 80, L. (/) Ch. 2, p. 5*
(6) Hob. 165. {g) 945. 946.
(c) Moore, 642, and Godbolt, pi. 33 ; 2 {h) \ Barn. & Ad. 538.
Roll. Abr. Presentmeut, L. (i) 1 Clark & F. 627.
(d) 4 Rep. 78 b. (k) 1 Dow & Clark 416: 3 Bl. N. S.
(e) Sir T. Jones, 18. 123 ; and 6 Bing. 1.
TRINITY TERM, 1836.
169
Alston
Atlay.
distinction between a living actually vacant, and one which might become so. King's Bench.
— [^Patiesotiy J. — Is there any case deciding what would be the effect of the
Bishop calling on the patron to present to a voidable living ?] — There is
none. — [Paitesonf J. — Can the Bishop of his own right compel the patron to
present, or must he take proceedings in his own court ?] — He must proceed
in Court, and will, at the expiration of six months afterwards, be entitled to
present by lapse. — [Littledale, J. — In Bro. Ahr'td. Quare ImpediL and Bro.
Abrid. Presentation a VEglise^ it is said that the Bishop may give notice
to the patron to present, and if he does not present within six months, the
Bishop may present by lapse.] The late patron cannot present, he has
parted with the advowson ; if the right is not in the present patron, the time
may run out, and the Bishop would then have the right to present, as upon a
default of the patron, when in truth there had been no default. — [Patteson^
J. — In Bro, Ahrid, Presentation, it is said, that if the incumbent of one
living procure another of the value of five pounds, which is neither within
the statute of Hen, 8, nor the statute of Eliz,, though that would not be
an avoidance of the living before notice to the patron, yet it shall lapse after
six months' notice ; so that it seems by that authority that the Bishop might
present without deprivation.] — That case goes further than the authorities
already cited, but it does not affect the present. Here the living was not
void, and tlie right to present passed to the purchaser of the advowson.
JVighttnan, in reply. — Nothing said on the other side meets tlie objection
that the patron cannot sell a void turn. For the purposes of the law against
simony there is no distinction between a voidable and a void turn. The
question as to the heir and executor does not arise here. Though the advow-
son passed, the right to present for this term did not pass. The creditors of a
bankrupt may sell the advowson, but if the church is void at tlie time of the
sale, the vendor shall not present, but the bankrupt himself, for the void
turn is not saleable ; Gibson's Codex (a). The same principle is adopted in
Leake v. The Bishop of Coventry (6), Walker v. Hammer sley (c).
Lord Denman, C. J. — The question here is, whether the defendant was
justified in not setting out the tithes for the plaintiff by reason that he had
ceased to be the rector, and that they were claimed by a new incumbent,
who had been presented by Mr. Lloyd, the purchaser of the advowson. It
appeared that the rectory of Cowshy was under the value of eight pounds in
the King's books, and that afler presentation, institution, and induction to
the rectory of Cowshy, and before the sale of the advowson to Mr. Lloyd, the
plaintifiThad accepted, and had been instituted and inducted to another living,
with the cure of souls, such second benefice being rated at above eight
pounds a year in the King's books. Now it is not contended that by the
acceptance of the second living the first became ipso facto void, but that
although not within the act Hen, 8, c. 13, s. 9, yet that by common law,
which in this matter has adopted the provisions of the Council of Lateran,
the first living was vacant by the acceptance of the second, so that the patron
might have presented, and that, therefore, it was opposed to the policy of
the law against simony to allow the patron, whilst the living was in that state,
(a) 174.
(6) Cro, £liz.811.
(c) Skin, 90,
170
TERM REPORTS m the KING'S BENCH.
Alstov
V,
Atlat.
K'mg*i Bench, to scU the advowson, so as to pass with it the next presentation. Now, in
order to hold, for the reasons urged in the arguments for the plaintiff, that
this sale was void quoad the next presentation, it appears to me that we
must he prepared, not to declare hut to make the law, and we should not be
justified in so doing. There is no case which goes the length of saying that
this first living has become void, on the ground of the mere acceptance of
the second, and we ought not to give such an effect to any principle of laW|
unless we find that the authorities fuUy justify us in so doing.
LiTTLEDALE, J.— I am entirely of the same opinion. The rectory of
Cowsby, it is found, is under the value of eight pounds in the King's books,
and the plaintiff was instituted and inducted in the year 1816. In 1829, the
plaintiff was instituted and inducted in the rectory of Odellf which is a
benefice with the cure of souls, 100 miles distant firom the first living, and
which is rated at above the value of eight pounds a year. This is not a
case within the statute, for that only applies to cases where the first livii^
is of the value of eight pounds and upwards in the King's books. By the
common law the acceptance of another benefice did not render the first
benefice void in the hands of the incumbent. But by the Council of
Lateran it was decreed, that the acceptance of a second living should be
sufficient to make void the enjoyment of the first, and this ecclesiastical law
was introduced into the general law of England, and is now taken to be such.
By the common law, which must prevail over the ecclesiastical law, except
when special provision has been made, this living became voidable^ and the
patron might have presented a new incumbent, and the living upon such
presentation would have become void ; or the patron might, by the ecdesias*
tical law^ have been required to present, and if he neglected to do so within
six months the Bishop would have a right to present by lapse. This has
not been done in the present case, and it is said, that as the original owner
of the advowson has not been thus called on, the plaintiff is still entitled to
receive the tithes, for that till presentation of another person the church is
full. So it would have remained if the same person had continued patron
of the living, but in 1831 the patron sold them to another person, and the
question is, whether this conveyance carried with it to the vendee the right
of presentation ? or^ whether that right remained in the original patron ? or,
whether neither of them had it, but the Bishop took it ailer a lapse of six
months ? If the first living was void, the presentation would go to the
Bishop on account of the lapse, but it was only voidable, and the original
patron determined to treat it as beneficial for himself that the first incumbent
should remain. The living, therefore, is not void ; but it is said that being
voidable is a great danger, against which it was intended to guard in the law
of simony ; and that to say that a right of presentation under such circum-
stances will pass to the purchaser of an advowson, will be to defeat the
laws against simony. I do not see that our decision in the present case can
have any such effect. It appears to me that the church being voidable only,
the right of presentation did pass, though, if the living had been void, it
would not, the right of the presentation for that turn being then no longer
part of the advowson. The right of presentation to a living not void at the
time, would go along with the advowson to a purchaser, who would stand in
the same situation as the original owner of the advowson. If the original
TRINITY TERM, 1836.
171
owner would have had the right to declare the living vacant, the purchaser King*t Bench.
standing in the same situation would have the same right. Mr. Lloyd here ^^n^^
has used that right, he has presented a person who has a perfectly good title Auitm
as incumbent of the living, and the right of the plaintiff to claim these tithes Atlat.
is now at an end. Judgment must be for the defendant.
Pattesok, J. — I also think that judgment must be given for the defendant.
At the time when the sale of the ladvowson took place the church was
voidable only, and not void. If it had been void, the conveyance of the
advowson would not have passed the right of presentation to the vacant
living, and all the authorities cited by Mr. IVtghiman only go to this extent,
diat if the living' had been void, the right of it would have been disannexed,
and would no longer have formed parcel of the advowson. That is the prin-
ciple of the case of Mirekouse v. Rameil^ in the House of Lords. I am not
prepared to say, that the objection as to simony would not form part of the
KSBoa why that right of presentation would not pass by the conveyance of
the advowson, and also because it would be a chose in action. But the
objection as to a chose in action does not apply to a voidable living, for until
presentment or deprivation the then incumbent still continues to hold the
Kving. The sale and conveyance of the advowson must pass every thing
that 18 appended to, or forms part of, the advowson at the time of the sale.
It has not been contended that if the incumbent had died the vendee would
not have been entitled to present, but it is very difficult to see why he
should not have the same title under the present circumstances. The diffi-
euhies which present themselves, if we were to hold that he was not entitled
to present^ are without number. The Bishop, according to the authorities
cited, might, m a case like this, deprive the party by sentence, or, by giving
notioe to the patron, might present by lapse, if the patron did not present
within six months from that notice. I will not stop to inquire whether these
authorities are sufficient for the purpose for which they are cited, but in
either mode of proceeding the Bishop is obliged to give notice to the patron.
WhO| then, in this case is the patron to whom the Bishop is to give notice ?
For some purposes it is admitted that the vendee is patron. Then why not
for all ? The vendor, afler sale and conveyance, is no patron at all. Unless,
therefore^ it can be said that this case was open to objection on the ground
of simony, the right of presentation passed by the conveyance to the pur-
chaser. Then, how is the objection of simony made out ? In the case of
Walker v. Hammersleyf which has been cited from Skinner, the qtuire impcdit
vaa to recover the very presentation which was void. If the word 'advowson'
ii to be taken in its large sense, as used there, that case is not law. It must
aeui the presentation to the vacant living. Then that case does not apply
to the present. So in the case of the assignees of a bankrupt, if the living
was Tacant before the party became a bankrupt, the assignees could not sell
Uw right to the next presentation, nor could they present to it. The reason
why assignees of a bankrupt cannot present ih such a case is, that they take
nodiii^ but what is of money's worth and value, and the presentation to a
ncut L'ving is not of money value in law. This reason shows that the case
of assignees is as an argument worth nothing in a case of this kind. The
presentation is no part of the estate and effects of the bankrupt. It is not
Taloable in a pecuniary point of view ; it is amere right or trust, and was so
172
TERM REPORTS in the KING'S BENCH.
Alston
V.
Atlat.
King's Bench, declared in this Court in Rennell v. The Bishop of Lincoln. Whether a
voidable turn will pass to assignees or not, is another thing. There is no
doubt, according to our decision, that as such a turn might be the subject-
matter of sale, it would pass to them. We are not able to avoid that. By
the law of the land an advowson is saleable, and I do not see why all that
is incident to it should not pass with it. In the case of Halton v. Coce (a),
** vacation ^* was taken to mean actual vacation. It is a singular thing in
that case, but there one moiety of the advowson did actually pass after the
living became vacant. In that case some observations were used which,
without a knowledge of the words of the acts of parliament, might tend to
mislead. It was said that the first living was, on presentment to the other,
void ipso jure. Those are the words of the Council of Lateran, but they
are not ipso facto. The two things must be treated as distinct. I see so
much mischief in extending to one case the principle applicable to the other,
that I think we must hold that^ unless the living is actually void, the con-
veyance will pass the advowson with all its incidents to the purchaser, and
he may, by his own act, make the living void, and so get the presentation.
The effect of this may be what has been described, but we cannot prevent
that.
Williams, J. — 1 am also of opinion that judgment must be for the
defendant. It is said that void and voidable are, for the purposes of the
acts against simony, the same thing in fact, for that the patron may at once
make the living void, and so get the presentation. There is not any case
going the length of holding that, because the mischief is the same, the law
is the same, and that the Court is to give effect to the provisions of a
statute upon a case which is not within them ; Fox v. The Bishop of Chester
is a strong authority to the contrary. In that case this Court had acted
upon that doctrine, but the House of Lords declared that an analogy of
this sort was insufficient and unsound, and so reversed the decision.
Judgment for the defendant.
(a) I Barn. & Ad. 538.
I'wo arbitrators
were empowered
to decide, among
other matters, on
what terms a
bail ding lease held
by an individual
under a corpora-
Uon should be re-
newed. Tlie arbi<
trators awarded
tliat the corpora-
tion should put
the premises in
«* good tenantable
repair, &:c. to th
Satiifaction of J. M.
Judgment of « third
ToMLiN V. The Mayor and Corporation of Fordwich.
/COVENANT. — The declaration stated the defendants' interest to certain
garden grounds and buildings within the liberties of Fordwich, and their
demise of the premises to one Theodore Sydenham, for the term of ninety-
nine years ; that he built a house on part of the land so demised, and con-
verted the residue into garden ground, to be used with the house ; that the
residue of the term became vested in one Anthony Jennings the elder, who
purchased a small piece of freehold land adjoining to the piece demised^ and
inclosed it therewith^ and it formed a part of the garden ; and that this
demise and premises became and were vested in the plaintiff at the time
when the lease expired, namely, the 11th of October , 1833, and the plaintiflf
,, of S., in the county of K., builder:"— iT«/i, tliat this reference of tlie repairs to the
pertoo waa not within the aothorlty of the arbitrators, and made the award bad«
TRINITY TERM, 1836. 173
was also seised of the said freehold piece of ground; and that at the expira- King's Bench,
tion of the lease certain questions and differences arose between the plaintiiF ^^^
and the defendants touching the renewal of the lease, and terms of such re- „.
newal, and touching the boundaries between the freehold and leasehold The Mayor
lands ; and that on the 15 th of December ^ 1854, certain articles of agreement ^^f Fo^J^ch^
were entered into between the defendants, under their seal, of the one
part, and the plaintiff of the other part, (which said articles of agreement
being in the possession of the said defendants, the plaintiff cannot
produce the same to the Court here,) and which afler reciting that at a
Court holden for the said town at the Guildhall there, on the 14th day of
January then last past, it was ordered that a lease of the said house and
gaiden belonging to the corporation, and in the occupation of the said
plaintiff^ should be offered to him for the term of thirty years, to commence
from the 11th day of October then last, at such rate and upon such other
terms and conditions as should be named by two indifferent persons, one to
be named by the said defendants, and the other by the said plaintiff*, with
power for those two to name a third person in case of difference ; and that
it was further ordered that arbitration bonds should be executed by the
parties to effect the above arrangement ; also that the question of boundary
between the defendants and the plaintiff should be determined by the arbi-
trators ; and also reciting that the plaintiff was willing to accept of a lease of
the said messuage or tenement, garden, and premises belonging to the de-
fendants, for the said term of thirty years, and to accede to the terms of the
said therein recited order in other respects, so that all questions and differ-
ences between the defendants and the plaintiff in the premises might be
determined and ended : — It was then witnessed that the defendants cove-
nanted for themselves and their successors, and the plaintiff for himself, his
heirs and executors, that the several questions and differences between the
said parties, relating to or concerning the matters aforesaid, should be re-
ferred and submitted to the judgment, award, arbitrament, final end, and
determination of Sieplien Elgar and George Moss^ with power to appoint an
umpire. It was further covenanted, that the parties should abide by the
award when made, or pay the sum of 500/., by way of liquidated or stipu-
lated damages. The declaration then averred, that on the 9th day of Sep*
tember^ in the said year of our Lord 1834, the said Stephen Elgar and
George Moss^ having heard, examined, and duly considered the allegations
and proofs of the said parties respectively, did duly make and publish their
award in writing, under their respective' hands, of and concerning the
matters to them referred, ready to be delivered to the said parties, or to
such of them as should desire or request the same, and thereby the said
Stephen Elgar and George Moss did, amongst other things, award, adjudge,
and determine, that the defendants should, within the space of two calendar
months then next ensuing, at their own costs and charges, put and place the
aforesaid messuage or tenement, with the outhouses and appurtenances
thereunto belonging, the property of the said defendants, in good and
tenantable order, repair, and condition, to the satisfaction of James Moys, of
Shtrryf in the county of Kent, builder; and they awarded that a lease
ihoold be executed at a certain rent, and containing the usual covenants,
among others, that the plaintiff* should keep the premises in repair, the same
having been first put in repair as aforesaid. It was then averred, that the
TERM REPORTS nr ths KING'S BENCH.
r*. defendants would not, within two months afler the award, put the house
into good and tenantable repair, to the satisfaction of James 3foy«, of Sturryf
and Uiat they refused to execute a lease to the plaintiff, by means whereof
f they had become liable to pay the plaintiff the sum of 500L as liquidated
tioa damages. Breach, — Non-payment of that sum.
'"' General Dewuarrer to the declaration, and joinder in demurrer.
Piaitf in support of the demurrer. — Instead of directing the terms on
which die lease should be granted, the arbitrators hare exceeded their
authority by going into other matters. They have not made a final award.
They hare directed the repairs to be done to the satisfaction of a third
penoD, and they have said nothing of the boundaries expressly referred to
their arbitration. The award is bad on two grounds ; firsts that the arbi-
tratois bad no right to direct repairs ; secondly, that they had no right to
jekgat0 to another person the power entrusted to them. The award would
be void if the arbitrators had exceeded their aythority in any one point ;
hoe they have exceeded it, or neglected it altogether. It would also be
abiolntdy bad if the arbitrators had decided only on the granting of the
lease, the question of the boundaries having likewise been submitted to
their decision. In Camyns's Digest (a), it is said, " If a submission be ita
Mod fat de prcemissis the award shall be of all matters in controversy of
which they have knowledge, otherwise it will be void." And again, ** If
there be a submission of such and such things specially named ita quod^ &c,
an award not made of all is void, for they ought to take notice of them,
being specially named in the submission." It is incumbent on the other
side to show that the arbitrators exercised their authority on the question
of boundaries. There is no allegation in the declaration that they did so.
Lastly, it does not appear by the declaration that the articles of agreement
were under the seal of the plaintiff. They are stated to have been under
the seal of the defendants, but not under the seal of the plaintiff, so that
he does not appear to have entered into any equal covenant with them.
There is, therefore, no mutuality of submission.
HayeSf in support of the declaration. The last objection has no force.
The defendants are a corporation, and could not bind themselves in any
manner but by seal ; the plaintiff is a private individual, and was not obliged
to seal an ordinary agreement. His liability sufficiently appears on the face
of the declaration. — \_Pattes(mf J. — You say that in an agreement with a
corporation, one party is bound by deed, the other by simple contract.]—
It is so. There is no law to show that where in a contract with a private
individual a corporation binds itself by deed, the individual contracting with
the corporation must necessarily do the same. As to the repairs, it is dear
on the general terms of this submission, that the arbitrators must have
understood that they had authority to direct repairs. In the first place, the
lease under which the plaintiff held was a building lease, and one of the
first terms of settlement must be the repairs. — [Lord Denman^ C. J. — ^It is
likely that the repairs would be referred, but were they so ?] — They were
in substance referred by the reference of the " terms and conditions" on
which the lease should be renewed, for these, taken in relation to a lease of
(a) Tit, Arlntrement, (£ 4.)
TOMLIN
V.
TRINITY TERM. 1836- 175
dufl sort, mast necessarily include repairs. The arbitrators could not exer« King*s Bench.
dse the power which it is admitted they possess, of directing the terms on
which the lease should be granted, part of which relates to keeping the
premises in repair, without in the first instance considering whether or not The Mayor
they were first to be put into a fit state of repair. This is clear from the w>d Corporation
nature of the reference, the situation of the parties, and the language used.
Then, as to the reference made by the arbitrators to the opinion of a third
party. It is clear that they had a right to the assistance of a third person,
if, in the discharge of their duty, they came to decide upon a fact which
they could not determine by their own personal skill and knowledge (a).
The arbitrators did not give him a general discretionary power, but speci-
fied the manner in which the repairs should be performed, and merely
directed the builder to see that the repairs were such as they had intended.
—[Lord Denmarij C. J. — ^The award would have been good had it directed
that the repairs should be done to the satisfaction of the arbitrators, but it
directed that they should be done to the satisfaction of Mr. Moys,'] — The
direction is not generally that the repairs shall be done to his satisfaction^
but his satisfaction is limited and restrained by the directions which the
arbitrators have before given. But even if bad as to this part, the rest of
the award being final may stand; Manser v. Heaver (b), — [^Littledakf J. —
If the arbitrators may direct one thing to be done to the satisfaction of one
person, they may direct twenty things to be done to the satisfaction of
twenty different persons.] — ^If the arbitrators here had left out any reference
to a third person, it would have been a question for a jury whether the
repairs ordered were good and tenantable. To avoid that inconvenience
iidg special reference to him was inserted. But it may be rejected, and
dien it will stand as a general award to piit the premises into tenantable
repair. The plaintiff is not bound to show that the arbitrators exercised a
discretion on the question of boundaries. He is not bound to set out on
the face of his declaration more than is sufficient to maintain the cause of
action there stated. He has done so here.
Lord Dehmak, C. J. — ^This reference to the opinion of a third person is
dearly an insuperable objection to this award.. It is impossible to detach
one part of the sentence from the other, and to say that one part may be
njected and the rest retained. The arbitrators have directed something to
be done which shall be satisfactory to the judgment of a third party. This
makes the award bad in a material part. The whole, therefore, is bad.
LiTTLEDAiE, J. — Without entering into the other parts of the case, I am
dearly of opinion that this award is bad. The reference to the judgment
of a third party cannot here be rejected ; it is of the essence of the award.
If the award had contained, as supposed, a general direction, it would
perhaps have been a question for a jury, whether the repairs, when done,
were done according to that direction, but that objection does not render
the reference to the judgment of a third party proper.
Pattssok, J.-— This case is distinguishable from that of Manser v. Heaver,
(«) Andmon i, WaUaee, 3 Clark & F. 26. (6) 3 Bam. & Ad. 295.
176 TERM REPORTS in the KING'S BENCH.
King*$ B&neh. The direction there was, that the bed of a river should be cleansed, and
v^v^ the arbitrator reserved to himself the right of afterwards declaring, if called
ToMUN upon by either party, whether what he had directed to be done was done to
The Mayor ^^i^ satisfaction. That reservation was to his opinion, but still it made the
and Corporation award not final, and therefore so far bad ; but there the objectionable part
of foRDwicn. ^^ ^YiQ award was clearly separable from the rest ; here the different parts
could not be separated.
Williams, J. — The argument of the plaintiff is most strong against him-
self. If the repairs were, as contended, to be made part of the terms on
which the lease was to be granted, the award should have been final as to
those repairs before directing the lease to be granted, and at all events the
argument shows that this reference as to the repairs cannot be separated
from the lest of the award.
Judgment for the defendants.
Doe d. Williams v. Smith.
A teMBt entered pjIECTMENT on a demise laid on the 4th o£ February, 1835.— P/ca, not
j^^botwMTo guilty* — At the trial before Bollandy B. at the Spring Assizes in 1835,
}M^r«nt«sfipom f^j^ ^^g county of Denbigh, it appeared that the defendant had entered in
pm«dinf . to the May, 1832, to pay rent to the 2d of February following, and then from year
fdof/WnMryin ^^ year. The following notice to quit was put in : —
after which he' WM " To Mr. Francts Smith. — Take notice that you are to quit and deliver
S^iMint*from"ye»r* "P ^^ ™®> '^^ undersigned Henry Owen Ayrane, the possession of all that
to ytKc. In Oe- mcssuagc, &c. at the expiration of half a year from the delivery of this
^Sred a notice"to notice, or at such Other time or times as your present year's holding of or
qait •• at the expi- j^ ^q gaiJ mcssuagc, &c. shall expire, after the expiration of half a year
yeer from the de- from the delivery of this notice, whereof you have this notice the 21st of
iwtry of this no- October, 1833."
tice, or atsttch f«-iii' /«•
other time or It was objected that this was not a sufficient notice, either to determine
^rwr^hoiST *^^ tenancy in February, 1834, at which time half a year would not have
of or in the »aid expired after the delivery of the notice, or in February, 1 835, which would not
SlSi"e*!f^'r^*iftcr ^^ ^^® ^*™® ^^^" ^^® tenant's " present year's holding " would expire. By
the expiration of the learned Judge's direction a verdict was found for the lessor of the
tiw^d*eiiwy™f°* plaintiff, and leave was reserved to the defendant to move to enter a nonsuit.
thi» notice:"— A rule having accordingly been obtained,
ja«tf,thatthe ^ ^^
word " present"
must have refer /o^» /ertw showcd causc. — This notice is sufficient. The rule of con-
ence to the expi*
ration of uie year struction as to noticcs of this kind is, that the Court will effectuate the
u'JIl^toJ^in^^e in^e^tion of the parties. The intention of the landlord here was to call on
notice, or might the tenant to quit at the expiration of the notice. If the notice could not
getJ^Twdrtwi ^y possibility expire in Peftri/ary, 1834, it would expire in February, 1835,
the notice was a and SO it shall be construed as a notice to quit given for any six months at
Jwru^nsM.' '^^ ^^^ of which the tenancy would expire. To effectuate this intention
the Court will reject the word " present;" Doe d. Bedford v. Kightley (a).
A notice dated on the 27th of September, and served on the 28th, requiring
(a) 7 Term Rep. 63.
TRINITY TERM, 1836. 177
a tenant to quit '< at Lady-day next, or at the end of his current quarter," Kiug't Bendt.
has been held not to be a notice for two separate days, but a proper six vi-nrw
months* notice j Doe d. Lord Huntingtower v. CuUiford (a). That is a dis- ^®'
tinct authority in fiivour of the present notice. Wiluami
V.
/?• K Rkkards, in support of the rule. — This notice is not sufficient to Smith,
determine the tenancy. It is too late to expire in February, 1834 ; it might
have done for the May holding, but will not do for February, and it is re-
stricted to 1834 by the words " present year's holding." The question is,
what is the meaning to be obtained from the notice?— [Lord Denman, C. J.
— ^That is the result of the cases.] — Then it is clear that the tenant could
not infer any thing but that the holding meant was that ending in February,
1834. But, as that holding expired earlier than six months from the time
of the date of the notice, it was clear that he could not be obliged to act
upon it at that time. He^ therefore, naturally considered that the notice
was altogether irregular, and that a fresh notice must be given. This is the
inference which any one must draw from it. The tenant was consequently
misled by the notice. On the principle stated, therefore, it is clear that the
notice was bad.
Lord Denman, C. J. — It appears to me that this notice is well enough.
It is admitted that it would do for May, if the commencement of the tenancy
had been from that time. If it would do for May, why not for any subse-
quent period at which the tenancy would expire ? Although bad for the
then next February ^ 1834, yet it is good for the succeeding February, and
the word *' present ** must be taken to be referable to the then present year
after the expiration of six months from the date of the notice. There is
nothing in the notice to mislead the tenant.
LiTTLSDALE, J. — The document is not very clear, but still the question is,
whether it is not sufficiently so to explain the intention of the landlord, and
make it intelligible to the tenant. The original taking was in May, 1832, to
expire in February, 1833 ; the defendant was then to be considered as tenant
from year to year from that time. The notice to quit was given in October,
1833, and if for the February immediately following, it would not be suffi«
cieDt ; but then the notice goes on, ** or such time as your present year's
holding shall expire, after the expiration of half a year from the delivery of
this notice." That would evidently take it beyond February, 1834, and
what is the time after the expiration of half a year of that notice, at which
the holding would expire? yfhj February, 1835. Therefore the words
** present year, after the expiration of half a year," must have reference to
the expiration of the year current after that time, or the word " present "
flhould be rejected altogether. If that is rejected, all the latter part is clear
enough, and the tenant must have known when he ought to quit.
Patteson, J. — I am of the same opinion. We must not construe these
notices with the same strictness as a plea or a replication.
Wiluams, J. concurred.
Rule discharged.
(a) 4 Dowl. & Ryl. 249.
VOL. U. N
178 TERM REPORTS ik ihb KINO'S BENCH.
Xing*i Binek,
Benmore V. Neck.
The omiMioii from 'pRESPASS for assault and battery.— Pfea, to a part of the trespasses,
Ul*l^'*iSd °®t guilty, and to the residue, a certificate under the statute 9 Geo. 4»
pnyerofjodg- c. 31, ss. 27, 28, the act relating to common assaults. The plea left blanks
of'dL'^fwh^ fo^f ^e names of the justices who adjudicated upon the question ; and it also
s plea goes to the omitted the nctio nouy and the prayer for judgment Demurrer^ assigning
u!r!!!JtiOT^,whethcr thcsc for causcs. The Court caUed on
it is pleaded to a
Sfittie'dediwtion. TytidaU to support the plea. He said, that the gist of the allegation was,
Where to an ac- ^^^ ^ proper authority had adjudicated on the subject-matter^ and that the
battery, the de- uamcs of the justiccs wcrc immaterial ; and he cited Draper v. Oarratt (a),
certificate under
».*^^ he most ^^ ^"*'* — ^® omission of the actio non and prayer of judgment was no
state the names of ground of dcmurrcr in any case where the plea went to the commencement
whom*the^ro.**"' o£ the action, whether it was pleaded as to part or the whole of the dedara-
ceedings under f^Qj^^ jt was ouly uecessary to insert the actio non and prayer of judimient
curred. where the plea was pleaded to the further maintenance of the action. As to
the names of the justices, it was clear that they ought to have been given ;
the defendant had no right to leave them in blank. The omission of their
names left the opposite party unable to contradict the plea.
Newman was to have argued in support of the demurrer.
Leave to amend, on payment of costs, was given,
(a) 2 Barn. & Cress. 2. (6) 5 Bam. & CrtM. 284.
Day v. King and others.
^^iTw" «. X^^^^^^^'""^'^' "^* guilty.— The plaintiff in this case was a college
3, c. 54, s. 15, and servaut, and was also a steward of a benefit club in Cambridge^ called
l^.t?3?Jidhe'ard " '^^® Original Friendly Society." The defendants are the late and present
the complaint of a Vicc Chancellor of the University, and three other gentlemen, magistrates
Tme^blllf^r*** acting in and for the town of Cambridge. The society in question was formed
friendly society, in 1765, and in 1794 its rules were allowed and inroUed by the quarter
h!I?b2n'tniaw- s«asions. Thcsc rules were altered in 1804, and again in 1820, but these
fully expeUed, alterations were not inroUed. The circumstances under which this action
were due to him, was brought, are as follows : — John Steam was a member of the friendly
ortelSdhiii^to\)e ®^^®^ ' ^^ ^^ admitted in 1812, and continued a member until 183S, and
re-admitted, and at that time he had for a considerable period been receiving weekly relief
*t*ent hwrin"****^ ^^^™ ^^® socicty. The society having some reason to suspect that he had
made an order for payment of the arrears, and issued a warrant of distress against two persons as officers
of the society : — flictf, that an action of trespass was maintainable by one of these persons on whose goods
the distress had been levied, all the facU necessary to give tlie justices jurisdiction not being distinctly
found and i«t forth on the face of tlie warrant.
TRINITY TERM, 18S& 179
feigned fllnesfl, lie was called upon to go before Dr. Thackeray, the physician Ki»^ B«iiefc.
of the society, to be examined as to his state of health, so that the doubts ^^^^
entertained might be satisfactorily disposed of. An appointment was made, ^^
but Steam did not keep it, and, at a subsequent meeting of the sodety, he Kino.
was called on for an explanation, when, not giving one that was satisfactory,
the members investigated the matter, and on the 29th of October , 1888, came
to 8 resolution declaring that he was expelled from the society, and his name
was erased from the books. The rule, for the breach of which Steam waa
expelled, was as follows : —
** Upon suspicion of any member pretending illness, the steward, if re-
quired, shall cause such person to be examined by one of the faculty, either
physician, surgeon, or apothecary, which of them shall be thought most
nsedful ; the expense occasioned by such examination to be paid out of the
box, and being found guilty of such imposition, on the declaration of either
of the aforesaid faculty, or refusing to be examined, he shall be excluded.'*
On the 29th of November, in the same year, Steam made a complaint to
Thomas Coe and Alexander Scott Ahbotty Esqrs., magistrates for the town of
Cwmbridge. In pursuance thereof, a summons was issued and served on the
Aen officers of the society. On the 22nd of November, the parties appeared
before the magistrates, and the hearing was adjourned to the 29th. Contra-
dictory evidence was given as to SteanCs conduct, with regard to the appoint-
ment to go before the physician of the society, and on this evidence the
magistrates ordered that Steam should be re-admitted a member of the
lociety. A copy of this order was served on persons named Massey and
Kagf, at that time officers of the society, but they refused to obey the order.
The society did not obey that order. On the 18th o£ February, 1834, Steam
took out a summons issued by the same justices, for the payment of his sick
allowance money, and served it on the stewards of the society (of whom the
plaintiff was at that time one), who appeared by Mr. Cannon, their attorney,
snd aflter several adjournments, the matter came before the five defendants,
who were justices of the borough aldo, who made the following order for
payment of 8/. 11«., as a sick allowance : —
" Town of Cambridge to wit. — To John Day and Matthew Diver, stewards
of the friendly society, called *' The Original Friendly Society," 8rc.
The order, afler reciting the information and complaint of Steam upon
ostfa, which stated that he was a member, before the two borough justices,
and the fiu!tB stated as above, proceeded —
^ We the said justices, whose names are undersigned, did then and there
proceed to hear and determine the matter of the said complaint, and make
lodi order thereupon as to us seemed just, according to the statute in such
die made and provided; that is to say, we do hereby order and adjudge, by
Tirtne of the said statute, that the said John Day and Matthew Diver do
farthwith and in our presence pay to the said John Steam the said sum
of 81. 4s,, BO due and owing to him for such relief aforesaid ; and we do
dso award and adjudge, that the said John Day and Matthew Diver shall
dso pay to the said John Steam the sum of 7s. for costs, according to the
itatnte in such case made and provided.— Given under our hands, &c."
The money not having been paid, the defendants issued a warrant of dis-
tress, directed " To the constable of the parish of Si. Clement, in the town of
k2
180 TERM REPORTS in the KING'S BENCH.
King's Bench. This warrant likewise recited tlie above facts, and proceeded —
v^/^ << And therefore we did order and adjudge, by virtue of the said statute,
^A* that the said John Day and Matthew Diver should forthwith and in our
KiKc. presence pay to the said John Steam the sum of 8/. 4«. so due and owing to
him for such relief as aforesaid, and we did also award and adjudge that the
said John Day and Matthew Diver should also pay to the said John Steam
the sum of 7^. for costs^ according to the statute in such case made and
provided. And whereas the said John Day and Matthew Diver were called
upon and required by the said justices, whose names are undersigned, forth-
with to pay the said sum of 8/. 4;., and also the sum of 7s» for die costs, to
the said John Steam, in pursuance of our said order, but they have refused,
and made default ; these are therefore to command you to levy the said sum
of 8/. 4«. &c. by distress and sale of the monies, goods, chattels, seen-
rities, and effects belonging to the said society ; and we do hereby order and
direct, that the monies, goods and chattels, securities and effects so to be
levied be sold and disposed of within five days, unless the said sum &c., and
in default of such distress being found, then to levy the said sum of SL 4f.
&c., by distress and sale of the proper goods of the said John Day and
Matthew Diver, &c., and we do order and direct the goods last-mentioned so
to be distrained, to be sold, &c. — Given under our hands and seals," &c.
The plaintiff* had ceased to be one of the stewards when the warrant was
issued, but the warrant was executed upon his goods, he having first de-
clared that there were not any goods and chattels of The Original Friendly
Society, upon which a distress could be made. At the trial of the cause at
the last Cambridge Assizes, before Lord AUnger, his Lordship thought it
necessary to leave two facts to the jury ; one was, << whether Steam was at
Dr. Thackeray's at the time appointed ?" the jury gave it as their opinion
" that he was not ;" the other, *' whether he was called upon for his defence at
the club when they expelled him V as to which the jury found << that he was
called on for his defence/* The learned Judge upon this stated it as his
opinion, that Steam could not be considered to be a member, though the
justices had made an order to restore him, but, on the authority of Lawther
V. Lord Radnor, he was of opinion that, as the magistrates had received
evidence and had adjudicated upon it, though they might be under a mistake
as to the facts, and though their order might be void, yet trespass was not
maintainable in respect of it. He therefore nonsuited the plaintiff^ but gave
him leave to move to set aside the nonsuit, and enter a verdict for 8/. lis.,
if the Court should think him entitled to recover. A rule having been
accordingly obtained,
0
Storks, Serjt., Starkie, and B. Andrews showed cause.— There is not a
pretence for saying that this action is maintainable. Here was an adjudica-
tion in a matter in which the magistrates clearly had jurisdiction. If they
had, their judgment is final and conclusive. There are two rules affecting
cases of this kind ; first, that if the magistrates have a general power of
inquiring into the fact, their judgment upon it is conclusive ; secondly, that
if the magistrates have this general jurisdiction, though they may not have
a jurisdiction in the particular case, still if the facts showing that they have
no such jurisdiction are not brought before them, they will be protected by
virtue of their general jurisdiction. This is so, though the investigation may
involve facts that are material to found the jurisdiction, as in the question of
TRINITY TERM, 1836. 181
locality, where the decision of the magistrates, though it may he erroneous, King*$ Bench.
is final. Here the order is good upon the face of it. If a conviction he n^<^^
good opon the face of it, the production and proof of it at the trial will ^^^
justify the convicting magistrates under the general issue in an action of Kino.
trespass, as well in respect of such facts therein stated as are necessary to
give them jurisdiction, as upon the merits of the case ; Gray v. Cookson (a).
In Famcett'^, FtrnHs (6), where the plaintiff had heen convicted for not doing
statute duty on the roads, and brought trespass against the magistrates, it
was held, that the conviction being good upon the face of it was a sufficient
defence, and that the plaintiff could not in this action try the question
whether the land which he occupied was exempt from the hurthen of repair-
ing the roads. Lord Tenterden there said (c), '* For some time I was dis-
posed to think this case analogous to some that have arisen on the poor-laws,
m which it has been held that if a person, not an occupier or resident within a
pven parish, be there rated to the relief of the poor, and his goods are dis-
tnaoed for the rate, he may maintain an action against the party levying. But
in those cases there was an entire want of jurisdiction. Here the justices had
jnrisdietion, and the plaintiff viras primd facie liable." That gets rid of the
effect of fVeaoer v. Price (d), which will be relied upon by tlie other side.
Then it is objected that Day was not an officer at the time of the order made
ind warrant issued. But he appeared by attorney, and cross-examined the
witnesses, and asked for the adjudication. The 49 Geo. 8, c. 125, enables
jnstioes for the place where the society is held, to exercise jurisdiction in these
matters. In that respect, therefore, the defendants are justified, for they had
jurisdiction. The 5th section of that statute declares, that the order of
justices shall be final, and shall not be removable into any Court of Law.
Its merits, therefore, cannot be tried over again in an action of trespass.
The case of Lowther v. Lord Radnor (e), decided that trespass would not lie
against magistrates acting upon a complaint made to them on oath, by the
terms of which they had jurisdiction, though the real facts of the case might
not luiTe supported such complaint if such fiicts were not laid before them at
die time by the party complained against^ and that case has been distinctly
leoogniied in Pike v. Carter (/). On the authority of these cases, this
nonsuit must be supported.
Ktlfy and Guttning^ in support of the rule. — At the time of the complaint
made. Steam was not a member of the society, and therefore the justices had
DO jurisdiction whatever. That brings this case within the rule admitted by
die other side. The 49 Geo. 3, speaks throughout only of a complaint made
bj a member of the society, so that his being a member is a condition on
which the validity of the proceeding must depend. Again, the act directs
Aat the application shall be made to the justices of the county, riding,
divisioDy or shire. Here the defendants did not come under, any of these
descriptions, but were merely justices of the borough. They had, therefore,
ao jurisdiction under the act itself. Steam here had been properly expelled,
nd the order to re-admit him did not of itself constitute him a member, but
die fiict of making the order shows, that his not being a member was fully
[•) 16 i
l)7B
[•) 16 £iit, 13. (d) 3 Bam. & Ad, 409.
Bam. & Cns. 394. (e) 8 East, 113.
Hid. 396. (/)3Biog.78.
132 "^SI^^ REPORTS IN THB KING'S BENCH.
Xui^M Bcn^ brought to their notice. Weaver v. Price is exactly in point, for there is
s^v^ nothing here on which f o found the jurisdiction. There is another objection.
Pat jiie plaintiff had completely ceased to be an oflScer ; now it was only in his
KiKo. character of an officer of the society that he was liable to the jurisdiction of
the magistrates. In that respect their warrant is void. The time for
objecting to this claim of jurisdiction has not gone by. Where a juris-
diction is created by statute^ no consent of a party will establish it, if the
facts of the case do not warrant it. Again^ the warrant is void for not
stating all the facts on which the jurisdiction is founded. It treats the
plaintiff as an officer of the society, yet it does not state that he is one» and
in fact he ceased to be so before the warrant was issued. In Wilkmt v.
Wright (a\ a warrant of commitment for neglecting to pay a sum of money
awarded under a bastardy order, was held bad, because it omitted to state
that there had been a complaint on oath, that there had been an a^udication
by the magistrates, that there was a sum of money due at the time of the
commitment, that the party charged was called on for his defence, and that
he did not show any sufficient cause for not paying. Here the warrant does
not state, directly nor indirectly, the facts necessary to found the juris-
diction.— [^TAUledale, J.— The information states that the party applied
against was an officer, and it must be presumed that he so continued.] — ^In
such a case nothing can be presumed ; Rex v. Bourne (^). All the facts
necessary to give jurisdiction must be stated distinctly ana positively, Rex
V. Perkasse (c), Rex v. Westwood (d)^ StalUngburgk v. HasUay (e). Rex v.
PiUs (/), and Maiden v. Fletwick (g). They were then sto]^>ed.
Lord Denican, C. J. — This warrant is most clearly defective. The order
of the 4th of April was made after the persons to whom it was addressed
had ceased to be officers of the society, and the warrant only recites the
complaint as made against them as officers of the society ; and it orders
them, on account of that complaint, to pay a sum of money, without stating
that they are still officers of the society, and then it recites the neglect to
pay this money, and the order against them, which can only be good if
issued against officers of the society. On the face pf this warrant the magis-
trates do not appear to have jurisdiction, and the warrant is therefore de-
fective. But it is defective in other respects. It does not find that Steam
was a member of the society, or that any sum of money was due to him in
that character. The magistrates have jurisdiction in matters of this sort,
but they must dispose of them by direct adjudication, they must show thst
all the circumstances necessary to give them jurisdiction did exist, and they
must find those circumstances as facts.
LiTTLEDALE, J. — I also am of opinion that this order and the warrant is
defective. The justices ought to have stated that there was proof of these
facts before them, instead of which they merely recite the complaint, and go
on to award payment of the money. Now the two persons on whom the
order was made had gone out of office a fortnight before the order
(a) 3 Tyr. 824. (e) 1 Sess. Cas. 131.
(6) 2 Burr. Sett. Cas. 39. (/) Dougl. 662.
(c) 1 Siderf. 363. (g) 2 Salk. 630.
(d) 1 Stnu 73 ; S. C. 2 Bott, 647.
TRINITY TERM, 1836. 183
made, and there ought to have been a fresh summons for the new officers, King's Bench.
but inrtead of that the proceedings go on against Day and Divert who had v^v^^
no more oontiol over the funds of this society than any ordinary member. ^^^
Pattisov* J. — This being an action of trespass, the magistrates can only
protect thontelYes by showing a warrant good upon the face of it. Assuming
that die magistrates had the power to find whether Steam was a member or
not, they should have put on the face of the order and warrant a distinct
&idiDg as to that fact. The magistrates here have not found on the face of
the order or warrant that Steam was a member, that any money was due to
hflBit or that any of the persons on whom they made the order to pay were
officera of the society. They have not, therefore, stated sufficient to justify
their warrant, unless we determine that the mere adjudication, without more^
is sofficieot for the making of the order. We cannot do that. We cannot
refin' to the terms of the information, or the assertions made in it^ and say
diat we can imply all the fiu^ts necessary to give the magistrates juris*
flifttoPi
Williams, J. — I am of the same opinion. In order to give the magis-
tntes juriadiction, the facts must sufficiently appear on the &ce of the order.
Staaru'B complaint was made as that of a member of the society. The
statute only authoriaes the justices to interfere in the case of the applica-
tion ot a member. The justices have not shown those &cts by which the
order, and consequently die warrant, could be good. The order does not
even appear to be made on a person who had the power to obey it. I
regret in this case to come to this decision, but the authorities are too strong
to allow any one to doubt upon it.
Rule absolute.
Kxifo.
Faulkner v. Chevell.
HEBT, on the 22 Creo, 2, c. 46 (a).— The declaration stated, that Charles To an acUou of
Pestell Harris^ before and at the times of the committing of the several ^'J^'J^^^^^
oSenoes hereinafter mentioned to have been committed by the said defendant, >• i4> against a
was the derk of the peace for the town o£ Cambridge, in the county of the ^a^e^or^a
(ktmbrideet and the defendant then was the deputy of the said Charles boroogh,f6r acting
^ * " M an attorney at
fm) By which H is enacted — " And to the where he shall execute the office of clerk of gjo^,^ ^^ ^^
CM tktt jvitiM oiay be impartially adminis- the peace, or deputy clerk of the peace, feudant pleaded
toed ia the several general or quarter sessions under-sheriff or deputy, on any pretence what- that he was not at
of this Inngdom, be it further enacted, by the soever, but if any clerk of the peace or his any of the said
Mhoritar afevsMid. that oo clerk of the peace deputy, or any under-sheriff or his deputy, times, &c. deputy
or Ui depaty* nor any under-sheriff or his shall presume to act as a solicitor, attorney, cl«rk of the peace,
deputy, mil, from andf after the 29th day of or agent as aforesaid, such clerk of the peace ^* ^^^ ^*^ ^®
ftpcsMbcr* act as a soKcitor, attorney, or or Ms deputy, under-sheriff or his deputy *^.^°*' *^^**
agent* m^ aw o«t any process at any general lespeetively, shall be subject and liable lo a ^enco'&c -^
ff aoarler seaeioiis of^he peace to be held for like penalty of fifty pounds, to be lecoYered ia jj^ ^ on spe-
mai eovDty, riding, diirinon, dtj, town cor- manner aforesaid. ^^ demmrer.
pmH^ or •tber place withia this kingdom, C2a>«r», whether
the new rales ex-
* See poity p. 185, Mr. Justice PaUetm*B and Mr. Gunning*^ statements respecting this word, tend to penal
actions so as to
limrnitr 4tft'M^PTi !■ sacfa an action from pleading not guilty, and fMM whether such plea would Und
tiie plaintiff in such action to prove ail the matters necessary to constitute the offence.
184
King's Bench,
Faulxmsr
Cbbtxll.
TERM REPORTS in the KING'S BENCH.
Pestell HarrUj so being such clerk of the peace as aforesaid; and the
plaintiff further saith, that the defendant so being such deputy as aforesaid,
afler the 29th day of SeptembeT, which was in the year of our Lord 1749,
and within the space of twelve months next before the commencement of
this suit^ to wit, on the 30th day of /une, in the year of our Lord 1834, at
the general quarter sessions of the peace of our Lord the now King, then
holden at the Guildhall of the said town, in and for the said town, (being the
town where he the said Aaron executed his said office of such deputy as afore-
said,) before Thomas Coe and Alexander Scoit Abbott, Esqrs., and others
their companions, justices of our said Lord the now King, assigned to keep
the peace within the said town, and also to hear and determine divers felonies,
trespasses, and other misdeeds in the said town done and committed, did act
and presume to act as an attorney for one James Davey, by then, at the said
sessions, as the attorney in that behalf of and for the said James Davey,
managing and conducting the prosecution of a certain indictment against one
Frederick Housden^ and upon the trial at that sessions of a certain issue joined
upon the said indictment, and which issue was then tried at the said sessions)
contrary to the statute.
Plea, — That he was not, at any of the said times in the said declaration
mentioned, the deputy of the said CJiarles Pestell Harris, as such clerk of the
peace as in the said declaration alleged, nor did he, the said defendant,
commit any of the said supposed offences, contrary to the form of the statute
in the said declaration mentioned, in manner and form, &c., alleged ; and of
this he, the said defendant, puts himself upon the country, &c.
Demurrer, — For that the defendant had not, according to the late rules^
denied specifically some one particular matter of fact alleged in the declara-
tion, or pleaded specially in confession and avoidance^ but had put in issue
not only the fact of the defendant being such deputy as aforesaid, but also
the fact of the defendant's having committed any of the said offences, and
the existence of the quarter sessions, and the prosecutions, indictments, and
proceedings in the declaration mentioned, and had thereby put in issue
several distinct matters of fact alleged in the declaration, and had tendered
two distinct issues, one upon the fact of his being deputy, and the other
upon the fact of bis having committed any of the said offences.
Joinder in demurrer.
Kelly, in support of the demurrer. — This plea is double, and is, in fact, an
informal general issue. If the 21 Jac. 1, c. 4, s. 4, is taken to apply to this
case, then this plea is not a good plea under this statute. But that statute
does not apply to tliis case ; for in Rex v. Gatd (a), it was resolved, " that the
21 Jac, 1, c. 4, does not extend to any offence created since that statute, so
that prosecutions on subsequent penal statutes are not restrained thereby»
but that statute is as to them as it were repealed pro tanto," And a similar
rule was laid down in Hick's case (6), and in Shipman v. Henbest (c). This
plea is double. The test of a plea being double, given in Stephen on
Pleading (d) is, that a plea '* must not contain several distinct answers to
that which preceded it." That fault is committed in this plea. The plea is
t
a) I Salk. 372; 1 Ld. Eaym. 370.
b) 1 Salk. 373.
(e) 4 Term Hep. 109.
(d) 3d edit. 261, et 9tq,
TRINITY TERM, 1836.
186
contrary to the new rules, where it is said (a), *' The plea of ml debet shall
not be allowed in any action ;" and *' In other actions of debt, in which the
plea of nil debet has been hitherto allowed, the defendant shall deny speci-
fically some particular matter of fact alleged in the declaration^ or plead
specially in confession and avoidance." He has done neither in this case,
but has pleaded a distinct matter of fact, and, in addition to that, the general
issue, though in an informal manner. — [^Liitledalet J. — It never was intended
that the new rules should apply to this kind of action.] — ^Perhaps so, but in
terms they do apply^ and the defendant has endeavoured to evade them.
W, H. Watson^ eontrd. — The plea is good, the declaration is bad. It will
be a case of great hardship if the new rules are held to apply to penal
actions, which are not within the statute of Atme^ and where, therefore, how-
ever untrue many statements are which are made in the declaration, the
defendant will be obliged to contradict some and admit the rest. This plea
would be good at common law ; it is a distinct denial of the facts stated.
Not gtiilty or nil debet was always, before the new rules, a good plea to a
penal statute (6). The new rules do not apply to all kinds of actions, Miller v.
Miller (c) ; and this particular kind of action has not been expressly provided
fi>r in them. If it was, the plea of nil debet would be taken away by force of
these rules from many actions in which statutes have directed it to be pleaded.
The plea here merely amounts to a denial of the alleged cause of action.
This plea is not double. The meaning of double pleading is, not setting up
two distinct matters of answer, but setting up two such matters on one point.
'•^[lAttledalet J. — Suppose that in an action quare claiuumf regit you pleaded
that the plaintiff was not possessed of the close, and that you did not break
and enter, would not that be a double plea ?] — No ; it would only be a plea
amounting to the general issue. The general issue is merely a short form to
put in issue the allegations in the declaration. The Courts have recently
allowed a like comprehensive denial to all the allegations in a plea, by per-
mittmg the replication de injurid in as9umpsii; Griffin v. Yeatesld),-^
[Pott^jofiy J. — You think that if you pleaded not guilty you would not deny
the acting as attorney.] — ^That is the object aimed at by the other side. In
the charging part of the declaration, it is said that the defendant being
the deputy, did act as attorney. If that is not specifically denied, it will be
taken as admitted. That was so ruled at the trial of Berkeley v. WatUng^ a
case now in the new trial paper of this Court. In Archbold^s Digest {e\
several authorities are collected, which show that the rule against duplicity
in pleading does not extend to prevent the defendant from denying all the
material facts alleged against him. That is all that has been done herCi
But the declaration here is wrong. It charges that the defendant, so being
such deputy, did act as an attorney, contrary to the form of the statute. It
•light to follow the words of the statute, and say, " did act as an attorney to
lae out process." — [Pattesony J. — In the ordinary editions of the statutes that
word is misprinted. The real expression is not " to sue out," but <* or sue
oat" — ^Mr. Gunntng stated thftt he had examined the Rolls of Parliament in
K\ng*i BtncK,
Faulkner
Chevsll.
(«) Hil. T. 4 W. A, II. 8s. 2 and 4.
(^ LangUv t. Haynet, Moore, 302, Bull.
K. P. 197 ; Johnt t. Cam», Cro. Eliz. 621 ',
WvrtUyy. Herpingham, id. 766.
(c) 3 Dowl. Pnc. Cas. 408.
id) 4 Dowl. Prac. Cas. 647.
(«) Page 170.
nSM REPORTS IN THE KING'S BENCH.
" or," and it was so printed in the edition in the Library
^^ ^^imM^'s Am» wd in the dd edition of Rtsffhead^s Statutes; but in the 2d
hj mistake printed " to.'']— Of course then that objection
&ils.
i ftplj. — The plea here is clearly bad. There was no necessity
in this form. The defendant might have pleaded that he did
such deputy clerk of the peace, act as attorney, or that he did not,
Mi^ tkfp«ty clerk of the peace, act as attorney. Miller v. Miller is not
j^fjjcdible to the present case, for that merely decided that the rules common
10 dl tiie Courts did not afiect a case such as that was, where one of them
a peculiar and exclusive jurisdiction. The object of the new rules
that the question in each case should be left less at large than by the
ihen existing mode of pleading. — \_LittUdaU, J. — ^The new rules put debt and
covenant together. The object of not permitting the plea of nil ddtet was,
that all the matters of real defence should be brought before the Court. Is
•ot the prohibition of that plea a virtual authority that a defendant should
be allowed to plead, as under the statute of Awne^ the different things which
are matters of real defence ?] — If it is so, the defendant should have gone
before a judge and obtained leave to plead several matters. The 4th section
of the new rules is intended to apply to all actions properly called actions of
debt. The statute which gave the right of action here, cdls this an action
of debt, and this action therefore falls within the new rules.
Lord Denman, C. J. — This is a matter of great and general importance,
and we should therefore like to consider it.
Cur. ado. vuk.
Lord Denman, C. J. afterwards delivered the judgment of the Court. —
This was an action of debt on a penal statute, brought against the deputy
clerk of the peace for the borough of Cambridge^ for practising at the sessions
there as an attorney. The plea was, that he was not at any of the said times
the deputy, and that he had not committed any of the supposed offences in
manner and form as above alleged against him. The plea was said to be
double^ and was stated to amount only to an informal plea of the general
issue ; and it was alleged that by this plea the defendant did not deny the
fact of his being the clerk of the peace, nor the fact of his having acted as
attorney ; that the plea of nil debet was taken away by the new rules, and
that there was nothing to unite this general denial of liability with the state-
ment that he had not committed any of the supposed offences mentioned in
the declaration. We think the plea in its present shape is not good. We
do not, however, say tliat a defendant, in an action on a penal statute, may
not plead as formerly a general denial of his liability ; nor, if he did so, do
we express any opinion as to whether that would not bind the plaintiff under
such a plea to make out all that would go to constitute the offence. The
defendant, therefore, may amend his plea, subject to any further discussion
as to whether such a plea in an action of this kind can be supported.
Leave for the defendant to amend on payment of costs.
TRINITY TERM, 1886. 187
Watson v. Wilkes. ^"^^^^
j^SSUMPSIT on a promissory note and account stated. Second plea. To a declaration
That the promissory note was made by the defendant and delivered to promiMoririioter
the plaintiff, for and in consideration of certain money and goods then i^eed ^« defendaut
by the plaintiff to be thereafter lent and advanced and supplied to him the note was given ^
defendant: and the defendant further saith, that the plaintiff did not, nor «pon an agree-
would at any time after the agreement and the making and delivery of the plaintiff and him.
said note, lend and advance or supply to the defendant the said money and ?^^^°/^'
goods so agreed to be lent, advanced, and supplied as aforesaid, nor any or certain monej and
either of them, or any part thereof, but hath wholly reftised, though often 5^*e^JSn*t^ to
requested by the defendant so to do: nor hath the defendant received any be thereafter lent
other consideration whatever for the said promissory note, and this he is *upp*^Jdto*Uie°
ready to verify, &C, defendant and
Replication, — That the defendant broke his promise, as in the first count ^id not perform
of the declaration mentioned, without the cause by the defendant in his **»« '^^ ■8'f**- .
seamd plea in that behalf alleged ; conclusion to the country. tiff repUed de in-
Special demurrer f showing for cause, that instead of the general denial in •^"^'""'^l*
the replication contained, it ought to have traversed or denied^ or to have
omfessed and avoided some one or more of the facts stated in the plea in
express words, and also the replication, if meant as the general replication
de injurid sud proprid, is informally pleaded, inasmuch as it omits to state
that the cause of action arose out of the defendant's own wrong : and also
&r that such general replication de injurid &c., is not the proper replication
in action on promises, &c. Joinder in demurrer.
fVightman^ in support of the demurrer. — This replication is bad in any
way of considering it. In form it is neither the replication de injurid^ for it
onuts the formal words that the defendant broke his promise of his own
wrong, nor is it a traverse of any particular fact stated in the declaration.
It puts in issue several facts, such as the agreement, the giving of the pro-
missory note in consideration of the agreement, and the non-performance of
that agreement. It is not within the exceptions in Crogate^s case (a), for it
does not consist of mere matter of excuse, but of matter of interest or of
andiority, in which case it is there resolved that the plea de injurid is
improper. ^[Pa^tof on, J. — Is this case distinguishable from those which have
lately been decided in the Courts of Common Pleas and Exchequer (6) ? They
go to the extent of declaring that wherever a plea contains matter of excuse,
ie hijurid not only may be replied, but is the proper replication.] — The
Court of Common Pleas has decided, that a replication was informal if it
traversed in succession all the facts stated in the plea, and therefore de
hjurid was the ordinary form of replication to such a plea : and in Isaacs v.
larrar^ the Court of Exchequer held that de injurid was a good replication to
ft jdea setting up fraud ; hut both these cases depended on peculiar circunn
stances. The rule properly governing this question is^ that where the
loatters are in the knowledge of the plaintiff himself, he must not reply de
(•) tSMweS. Mee. & B. 169; Nwl v. mdi, id. aeO,
\k} Qriffin v. YaUt, 1 Hodges, 387, 2 1 Gale, 225; Itaaet v. Farrar, 1 Mee. &
fiiag. N. C. 579, and 4 DowL P. C. 647; Wsls. 65, and 1 Gale, 385.
CHip f . GHffiths, 1 Gale, 106, and 2 Cr.
188
TERM REPORTS in the KING'S BENCH.
King*t Bench, injuridf but must traverse some distinct fact on which the defendant can
take issue, and that brings it within the rule in Crogate*8 case, which says,
that if the defendant excuses himself on the authority of the plaintiff, de
mjurid shall not be rephed. Here the whole matter depends on the ques-
tion whether the plaintiff agreed or not in the manner stated, and that cir-
cumstance, which was within the knowledge of the plaintiff, distinguishes
this case from those which have been mentioned.
Watson
WlLK£8.
. Armstrongs conird, — The plea here is in effect an allegation of a failure of
consideration, and the replication merely denies that. He was stopped.
Lord Denman, C. J. — We think that this question of the sufficiency of
a replication of this sort, has already been decided in your favour.
Judgment for the plaintiff.
In teiri faeitu a
plea that a writ
of error has been
sued oot and was
still pending, and
that the judgment
had not been
tflirmed or re-
vered, is bad| as
not being an
answer to the
action.
Snook v. Robert Maddox, Executor of Thomas
South WOOD, deceased (a).
T^ECLARATION in scire facias upon a judgment for 7182. lOs. against
Thomas Southxtx>odf who died leaving the defendant his executor.
Plea, — That after the recovery of the judgment, and before the return of
the second writ of set, fa.f the defendant sued out a writ of error, which is
still depending, undetermined, and in full force, and that the judgment is not
yet either affirmed or reversed ; concluding with a verification and prayer of
judgment.
Replicaium. — Prctchdi non, because after prosecuting the writ, a transcript
of the record and proceedings of the plaint was sent to the Exchequer
Chamber, which Court afterwards, in Michaelmas Term, quashed the writ of
error, and the same then and there became and was determined, and the
judgment remains in full force and affirmed.
Demurrer to the replication, on the ground, first, that the replication
vouches no record of the alleged quashing of the writ of error ; secondly,
that the quashing of a writ of error is not a matter in pais cognizable by a
jury ; thirdly, it does not appear upon what ground the writ of error was
quashed; fourthly, that a writ of error being a writ of right and not of
grace, the Court of Exchequer Chamber had no power to quash ; fifthly, that
no right to quash a writ of error quia improvid^ emanaoit is vested in the
Court to which such writ is returnable, or in any other Court than that out
of which it issues ; sixthly, that even the Court of Chancery has no power to
quash otherwise than upon an objection referring to some defect apparent
upon the face of the writ itself; seventhly, that upon the plea and repli-
cation^ it appears that the scire facias issued while the writ of error was
depending. Joinder in demurrer.
Mannings in support of the demurrer. — ^The replication here is bad, and
the plea which will be impugned on the other side is good. In Tidd's PraC'
(o)<See anu, Vol. I. p. 584.
TRINITY TERM, 1886-
tice(a\ a writ of error is described as a supersedeas of execution. That is
in accordance with the object of the scire faaas^ which is to call on the
defendant to show cause why execution should not issue on the judgment,
and which therefore admits the execution to be suspended till cause is shown.
The answer that the writ of error has been quashed is not good in law.
The Court of Chancery ^ out of which such a writ issues, may quash it for
many objections ; but the Court into which it is returnable can only quash
it for defects apparent on the face of the writ itself; Lord Say and Sele v.
Stephens (b\ Lloyd v. Skutt (c). The objection here was, that the writ of
error was on a judgment on a feigned issue. If so, the plaintiff might have
applied to this Court to refuse the allowance of the writ, or to have issued
execution notwithstanding its allowance^ or perhaps he might have moved for
an attachment for issuing such a writ, if, by the practice of the Court, it was
understood that the party who tried such an issue had not a right to a writ
of error. But here the plaintiff has joined in error. — [^Pattesont J. — We
cannot know, except by what appears upon the record, on what ground the
Court quashed the writ of error.] — The objection to that course of proceed-
ing is, that the cause of quashing the writ does not appear on the record. The
Court of Error had no jurisdiction to quash the writ, but for a cause apparent
on the face of the record. A party is entitled to a writ of error as of right
and not as of grace, and the proper course would have been to apply to the
Court to set aside the allowance of the writ, as in Baddely v. Shajlo {d).
In Denn v. Roake (e), a motion was made to quash a writ of error in this
Court, in which it was returnable, and Lord Tenterden said, " The defend-
ants ought, in an earlier stage of the proceedings, to have applied to the
Court to quash the writ of error ; but they have joined in error, and by
their counsel have appeared upon argument. They are much too late."
The other side has not shown at what stage of the proceedings the writ of
error was quashed, and as that ought to have been done, the mere allegation
that it was quashed is not sufficient. The plea is good ; but if any defect
should be thought to exist in the plea, that defect is cured by the plaintiff
pleading over.
Buttf in support of the replication. — ^The plea is bad and the replication is
good. It is admitted that in certain cases the Court of Error might have
quashed the writ, and that being so, it must be taken that that Court has
rightly exercised its power. It lies on the other side to show that the pro-
ceedings of a superior Court are wrong. — [Paiteson, J. — We cannot know
whether the cause for which the writ of error was quashed was apparent on
the &ce of it, for we have not the judgment of the Court before us. — Lord
Denman^ C. J. — Is it not then a judgment which ought to have been set out
in the replication ?] — It is not : the replication properly states the proceed- *
ings, and if the other side intended to have raised the argument that the
judgment was wrong, or that the Court had not jurisdiction, they should
have set out the judgment and the objection to it. But it is not necessary
to consider the replication^ for the plea is bad. It may be admitted that a
189
King* t Bench.
Snook
V.
Maddox.
(«) Page 690, 9th ed. and Myer y. Arthur,
1 Sir. 419.
19.
(6) Cro. Car. 142.
(e) Doug. 350.
(d) 8 Taunt. 434.
(e) 6 Barn. & Graf. 755, n.
190
TERM REPORTS nr vri KING'S BENCH.
Snook
V.
MilDDOZ.
jriiv*! BtneK ^^ of error is a stay of execution, but the question here is, whether a writ
of error pending is a good plea in bar to a scire facias. It is not: if it was,
a party would only have to issue a writ of error, and the plaintiff would then
be obliged to go over all the process again. The course of proceeding in
cases like the present has always been, not to plead the writ of error in bar,
but to move to stay the proceedings ; Entwistle v. Shepherd (a), Christie v.
Richardson (6), Pool v. Charnock (c), BenweU v. Black (d). In ComytCs
Digest (e) it is said, that error pending of the same judgment is not a plea in
bar to a scire facias^ and Dighton v. Granvil{f) is referred to. That was
an action of debt upon a judgment, and a plea of a writ of error pending,
pleaded in abatement, was held bad, and the Court there said that it would
not be good in a scire facias. There is no distinction between debt on judg-
ment and scire facias. In Goodwin v. Goodwin (g), there was an attempt to
plead such a plea as this as a temporary bar, but it was denied even in that
way. In Rowley v. Raphson (A) it was held, that a plea of writ of error
pending was not good either in bar or in abatement, and the observations of
Lord Hok^ which seem to detract from the force of the ruling in that case,
appear to have been purely extra-judicial. If the plea of a writ of error was
a good plea at the time, it could only have been a temporary bar, and it has
not been pleaded as such, but as an absolute bar. But even then the plea
of writ of error must have ceased to be a bar, for that is removed by the
quashing of the writ, and the proceedings now may properly go on. — [^Liitlc"
dalCf J. — At the passage in Comyn there are the words <* Semhle ccntrd
Shower ;" what is that case in Shower ?'] — It is the same as the case already
quoted from Skinner , it is a mere extra-judicial dictum.
Mannings in reply.— It is admitted on the other side that this plea may be
a temporary bar. The only difference between a plea in abatement and a
plea setting up a temporary bar, is, as to the prayer of judgment, and that
would not be bad on special demurrer. The Court will give judgment on
the whole record. If this writ of error was quashed, the judgment of the
Court ought to have been quod cassetur billaf and if so, that ought to have
appeared on the record, and to have been avouched on the pleadings, and
the want of it is one of the causes assigpied for demurrer. — IPatteson, J.-—
The record itself does not go to the Court of Error, a transcript only is sent,
and by the statute constituting this Court of Error (t), the proceedings and
judgment are to be entered on the original record, and further proceedings
awarded in the Court in which that record remains. If the writ of error
was quashed by the Court of Error, there could be no entry on the record.]
— ^That is an argument against the Court of Error exercising its jurisdic-
tion in quashing the writ, if it has no means of entering its judgment on the
* record.
Lord Denman, C. J. — This plea is bad. It is admitted that in debt on a
judgment, the suing out of a writ of error would be no plea to the action.
(o) 2 Term Rep. 78.
h) 3 Term Rep. 78.
c) Id. 79.
d) Id. 643.
e) Pleader, (3 L. 10.)
(/) 4 Mod. 247.
h) 20 Vin. Abr. 69.
(h) Skinner, 591.
;») 11 Geo. 4, and I WiU. 4, c. 70, s. 8.
TRINITY TERM, 1886.
191
Snook
9,
Maddox.
and I think that the same rule applies with respect to proceedings by icire KingU B§nek,
facias. It appears from the reports of the case in Skmner and Shower^ that
Lord HoU intimated an opinion to the contrary, but that opinion was not
necessary to the decision of the case itself, and appears to have been deli-
vered extra-judicially. The party suing out the scire Jadas may not have a
right to enforce execution pending a writ of error, but he is not to be put
under other disadvantages. It is clear to me that this plea cannot be main-
tained.
LiTTLEDALE, J. — This plea is not good. A writ of error only operates as
a suspension of the execution itself, but there seems no reason why exe«
cution should not be awarded.
Patteson, J. — I am of opinion that this plea is bad. The authorities
cited apply generally to cases of debt on judgment, and Mr, Maiming has
tried to raise a distinction between debt on judgment and proceedings on a
sore facias. I think that the same rule applies to both. He says, that a
scire facias is in substance a rule to show cause why execution should not
issue, and that as the party cannot put in force the execution, it would be
idle in the Court to say that he shall have it ; but he forgets the distinc-
tion between giving an award of execution and putting it in force. Here the
party has a right to call for the award of execution, and the Court, by
awarding it, does not say that notwithstanding a writ of error the party in
whose favour the award is made shall be authorised to take the person or
the goods of the other. In both the cases of scire facias and of debt on
judgment, the plea of a writ of error pending is bad, because it is not an
answer to the action. If the writ of error is determined in favour of the
plaintiff, it is clear that he will be entitled to issue execution. Again, it is
said that the writ of error is a temporary bar ; I do not understand what that
is. In the judgment that the Court now gives, it may be assumed that the
writ of error is still pending. If so, and the Court awards execution to one
party, the other may come and apply to stay the proceedings. We shall
then have all the facts properly before us. It seems to me, that, for the pur-
poses of this argument, there is no distinction between debt on judgment and
proceedings by scire facias^ and that this plea is therefore bad.
Williams, J. concurred.
Judgment for the plaintiff.
JoxES V. Owen.
/MSSUMPSIT^ for goods sold and delivered, and on an account stated. iq auumfiu for
Plea, as to the said several sums of money in the declaration men- s^^ ^^^ ^^
tioned, except as to the several sums of 3/. 9j. 6\d, and 1/., making together piaimuF pleaded,
4/. 9*. 5Jd., parcel of the several sums of money in the declaration men- fi"t. »<»" «»•*»«*
tioned, non assumpsit : and as to the said sum of d/. 9«. 5\d.^ parcel of the sttmof4/.9r.M.;
secondly, a tender
aa to S/. 9*. U,,
parcel, &c. ; thirdly, payment of 1/. In neither plea was it stated whether the tender was made before
or after the payment. The second plea was specially demoned to :— fi«U, that it was •nflScient.
192
TERM REPORTS im ihb KING'S BENCH.
JONIS
V.
Ow£N.
King*t Biwih. several sums of money in the declaration mentioned, the defendant says that
the plaintiff ought not to have or maintain his aforesaid action thereof against
him to recover any greater damages than the said sum of S/. 9s. o\d,^ parcel
&c. in this behalf^ because he says, that after the making of the said promise
in the said declaration mentioned, as to the said sum of 3/. 9s. 5|J., parcel
&c., and before the commencement of this suit, to wit, &c., he the defend-
ant was ready and willing, and then tendered and offered to the plaintiff to
pay him the said sum of d/. 9s. 5\d., parcel &c., to receive which of the
defendant the plaintiff then wholly refused, and the defendant in fact saith,
that he the defendant hath always from the time of making the said promise
as to the said sum of d/. 9s, 5^(2., parcel &c,, hitherto been ready to pay,
and still is ready to pay to the plaintiff the said sum of d/. 9s. 5 J J., parcel
&c., and he now brings the same into Court here ready to be paid to the
plaintiff if he will accept the same, and this the defendant is ready to verify,
wherefore, &c. : and as to the said sum of H., otlier parcel of the said
several sums of money in the said declaration mentioned, the defendant
saith, that heretofore, and after the making of the said promise in the said
declaration mentioned as to the sum of 1/., parcel &c., and before the com-
mencement of this suit, and before the plaintiff had sustained any damage
by reason of the non-payment of the said sum, to wit, &c., he the defendant
paid to the plaintiff the sum of \l. in discharge of his said promise as to the
said sum of 1^, parcel &c., and this the defendant is ready to verify.
Replication to the plea as to the sum of 1/., parcel &c., that the defendant
did not pay &c,, and as to the plea of the defendant secondly above pleaded
as to the said sum of Si. 9s. S^d., parcel &c. Special demurrer, showing for
cause, that the plea is pleaded only as to part of the amount admitted to be
due and owing by the defendant to the plaintiff; but it is not stated, nor
does it appear that at the time of making the tender in that plea pleaded the
residue of the debt had been discharged, but for any thing that appears by
the plea, the whole amount admitted by the defendant to have been due
from him to the plaintiff in respect of the causes of action in the declaration
mentioned, still continued owing and unpaid at the time of the making of the
tender, and that there is no cause whatsoever assigned or shown to make the
tender of the smaller amount a good tender where more was at the time due,
&c. Joinder in demurrer.
it. V. Richards, in support of the demurrer. — The plea is bad ; it admits
a certain sum due^ and then pleads a tender of part as if in satisfaction of
the whole. The plea should have been as to all except SI. 9s. 5j^d. non as-
sumpsitf and as to that sum, a tender. If the defendant intended to show
that the Si. 9s. 5j^d. was a distinct debt, he should have so stated it in his
plea ; but he has confessed the whole as one debt, and then pleaded a tender
as to part. It is a clear rule of law that all the circumstances which show a
tender to be good must be pleaded ; Lancashire v. KiUingworth (a). — [Lord
Dennum, C. J. — ^Have you any authority for this abstract proposition, that a
tender is bad unless pleaded to the whole of the sum stated to be due ?] —
There is no distinct authority for such a proposition, but that is the result of
the cases collected in Chitty on Contracts (6). A creditor is not bound to
(a) Salk. 623.
(6) Page 619, 2d edit.
TRINITY TERM, 1836.
193
JOKIS
V,
OwBIf.
accept less than the sum due, for otherwise the debtor might tender part of KingU BmeJk.
the sum, and thus deprive the creditor of the right of arrest, and alter the
nature of his remedy. The plea of payment shows that the sum tendered
was not the whole sum due, — ILittledale, J. — In the plea of payment there
is an allegation that is not usual, namely, that *' before the plaintiff had sus-
tained any damage" the defendant paid.]
John Jervh, contrd. —The plea is good. In order to support the objection
to this plea, the other plea is referred to ; but this plea must be taken by
itself, and then it will appear to be good. But if the plaintiff is to be allowed
to couple the pleas together, then they amount to an allegation that payment
of part was made '* before any damage accrued," and tender of the rest was
made afterwards, and consequently that the tender was of the whole sum
then due. If the party does not object to the tender at the time, by reason
of its being only a portion of the debt, he cannot object aflerwards. The
defendant might think that he had tendered all that was due, and as no
objection was made, it must be taken to have been a good tender. It does
not appear on the face of the record that these were not separate debts, and
if so, a tender of either would be good as to that debt. If a party owes
%0L for a horse, and 1 0/. for a carriage, he has a right to tender separately
for each. In Viner's Abridgment (a) it is said, " It was agreed in avowry
that where the lord distrained for two days' rent in arrear, the tenant might
tender one, and the lord would be bound to receive it. So of part of a
debt;" which shows that if there are two debts of a distinct nature the
tender of one will be good.
Richards^ in reply. — ^The defendant has not shown these sums to be
separate debts, and as a plea is to be taken most strongly against the party
pleading it, they must be considered to have formed but one debt, and then
the plea of tender of part is not an answer to a demand of the whole.
Lord Denman, C. J. — The objection here is, that a plea of tender is bad
because it does not appear that the whole sum due was tendered. But in
this case there are pleas of tender and of payment. It is not stated that this
payment took place after the tender. Suppose it is necessary that the debtor
should tender all that was due, I think that there is nothing to show that
this was not done on the present occasion, and, at all events, there is nothing
to show that the sum tendered was not tendered as the whole sum that was
dien due. The plea seems to me an answer to the declaration.
LiTTLEDALE, J. — It sccms to me that this second plea is a good plea.
It is said that the sum pleaded as tendered is not the whole sum due, for
that the defendant himself shows that there was a further sum of 1/. due.
It is then said that a defendant cannot tender one sum when he admits
another and a larger sum to be due. I do not think that we can attend to
this objection in the present case. As the record stands now, it does not
appear when the 1/. was paid. It might have been paid before the
d/. 9c. 5\d, were tendered ; if so, the point attempted to be made does not
VOL. II.
(a) 20 Viner, tit. Ttndtr (E).
o
194 TERM REPORTS iv ths KING'S BENCH.
K'm^B Bmek. tame. If die II. and die Si. 9s. S^d. were not suing separately due, the
■*-^''*- pidntiff shooid iMKve shofni diat, lint at present each appears to be a separate
saas, and the pies of tender of one of them, as here stated, is sufficient.
PArrzsoir, J. — Befae the new rules nodiing would have appeared upon
the record bat a tender as to part and the general issue as to the rest. The
new rules retpiire diat if there has been payment it should be specially
pW'*^ The plea of payment is diereliMe pot upon the record. Then the
demurrer comes to this : dmt dxre being a plea of payment on the record,
dbe plea of tender is bad, becaaae it does not aTcr in express terms that the
payasent wan made beixe, and dberdbre it is argued that we must assume
diat it was made after die tader. We are not bound to do this. If the
lender was not, aa it is argued, a good tender in law, the plaintiff should
hawe denied the tender. If it is a good tender in law, then this demurrer
cannot prevaiL But I do not in this case gi¥e any opinion on the point
whedber it was a good tender, aa I do not think it necessary that it should
have been stated that this tender was made after die payment.
Wn.iJAMs, J. — Mr. JUcAunls, in ofder to Ibnnd his objection to the plea
<if tender, is obliged to couple the two pleas together. But even then I can
see nothing on die fiwe of either to fix the time at which the payment was
made; and if that was previous to die tender, then die tender was of all the
moaey due.
Judgment fi>r the de&ndant.
GwiNNELL V. Edward Herbert.
A. Mde a pro. /ASSUMPSIT on a promissocy note. The dedaration suted that the
niMory note defendant made his promissocy note, &c iPiea, that the defendant did
bto ^CT? \ !>- "^^^ make it in manner and form. The cause was tried before the under-sheriff
doned M'^HM, of GkmcuUr^ whcu it ai^ieared that the note was made by Herbert Herbert
dQ^J^^'c!*did ui fiivour of the pUintiff, payable to him or to his order, and that after the
not becooM • nev making it had been indorsed, not by Herbert Herbert^ but by the defendant,
bnt was liable ' The uote was dishonoured — no nodce of dishonour was given to the de-
oniy in his cba- feudant as iudorscr, but the pbuntiff sued him as maker. The under-sheriff
racter of in- , \ » ^ n w \ii*i» t
doner, and was actiug upon the authonty of Penmf v. limes (a), held that it was a good note
to ^llMicTof dfa^ ^ charge the defendant as maker, and a verdict was therefore taken for the
honour. plaintiff. A rule had since been obtained to set aside this verdict and have
a new trial, on the ground that the action was -not maintainable against the
present defendant as a maker of the note.
R. V, Richards showed cause. — The under-sheriff's direction was perfectly
right. Fenny v. Innes shows that an indorser of a bill becomes a new
drawer. Plimley v. Westley (6) is not an authority against that proposition,
for in that case there was no direction making the instrument payable to
Older. The note there was consequently not a negociable instrument.-^
(a) 1 Cr. Mee. & Ros. 439, and 5 Tyr. (6) 1 Hodg«8, 324; 2 BiDg. N. C. 249;
107. 2 Scott« 423.
TRINITY TERM, 1836.
196
[Paiiesonf J.-- Do the authorities go the length of saying that any indorser King's Bgm^
of a promissory note might be treated as a maker? In a bill of exchange
every indorser may be treated as a new drawer, for each party has still his
rights against the acceptor ; but in a promiiisory note the maker is an ac-
ceptor, not a drawer.] — The maker of a promissory note is liable in the first
instance, and this defendant has put himself in the situation of the maker of
the note.
GwiKMXLL
Hbrbert,
Busby t in support of the rule. — ^Tlie indorser of a promissory note may be
liable to be sued in the first instance like the drawer of a bill of exchange,
but he is not liable to be treated like an acceptor. The distinction between
a promissory note and a bill of exchange has not been sufficiently adverted
to by the under-sheriff. That distinction is fully stated by Lord Mansfield
in his judgment in Heylyn v. Adamson (a). It has been already determined,
that where a bill of exchange is perfect in the first instance, there cannot be
a second acceptor ; but the person who signs as such second acceptor is
merely a collateral security ; Jackson v. Hudson (6). Here the note was a
perfect instrument in the first instance, and the defendant could not put him-
self into the place of a second maker of the note. The action against him as
maker is therefore not sustainable, and notice of the dishonour ought to have
been proved.
Lord Denuan, C. J. — It appears to me that the under-sheriff misread the
case of Penny v, Innes, In order to hold that a notice to this defendant was
not necessary, we must treat the defendant as a new maker of the note. In
Penny v. Innes the indorser might be treated as a new maker, for there the
instrument was a bill of exchange ; but he cannot be so treated here, for
this is a promissory note, and the maker of a promissory note is in the
situation, not of the maker, but of the acceptor of a bill of exchange. In
PUmley v. fVestley, Lord Chief Justice Tindal observed, that since^he stamp
laws every fresh indorsement cannot be considered as constituting at all
events a new contract^ nor can it be so considered here.
LiTTLEDALE, J. — I am of the same opinion. The declaration alleges that
the defendant made his promissory note, undertaking to pay so much money,
but I cannot imderstand how that allegation is made out here. It is said
that every indorser is a new drawer. He may undertake all the same lia-
bilities, but he cannot be said to be the same person, nor is he to be treated
in the same manner. The indorser must have notice of the dishonour, not
so the original maker of the note. I fully agree with the doctrine laid down
by Lord EUenhorough in Jackson v. Hudson.
Pattesom, J. — The plea here is, that the defendant did not make the
note. That is a question on which I think there is not the slightest conflict
between the cases of Penny v. Innes and PlMey v. fVestley, if we attend to
the distinction between bills of exchange and promissory notes. The whole
matter turns on that distinction. In a bill of exchange each indorser b io
(o) 2 Burr. 676.
(h) 3 Camp. 447.
o 2
id6
TERM REPORTS in thx KING'S BENCH.
G WINN ELL
V.
Herbert.
King't Bench, ^^^ nature of a new drawer. It is said so in Penny y. Innes, and I do not
dispute it. But in the case of a promissory note it is different. The maker
of the note is in the situation, not of the drawer, but of the acceptor of a
bill of exchange, and he is liable in the first instance, without respect to any
other person at all. If every indorser of a promissory note is to be held in
the same situation as the maker, then he would be liable in the first instance,
which is not the case with the drawer of a bill of exchange. The case of the
one does not therefore apply to the other. In PHmley v. fVestky^ the instru-
ment was a promissory note, and in the first instance it was not a negociable
instrument. The indorser, therefore, was not held liable as indorser but as
maker, and the note, upon his making, required a new stamp. But here the
instrument was a perfect negociable instrument in the first instance, which
makes this case like that of Jackson v. Hudson, That was the case of a
person who was not the acceptor putting his name upon a bill of exchange as
acceptor, notwithstanding which, the bill being already perfect, he did not
make himself liable as acceptor ; so here, the person who was not the maker
of the note put his name upon it as maker, but, the note here being also a
perfect instrument, did not by doing so impose upon himself the liability of one.
In the report of PUmley v. WestUy^ in Hodges (a), Lord Chief Justice Tmdal
says, " That a bill or note cannot be enforced against the original maker by
a person who takes by indorsement, unless the instrument contains words
which authorize the indorsement." Here the instrument did contain such
words, and there being one original maker, there cannot^ according to the
case o£ Jackson y. Hudson, be a second.
Williams, J. — ^The plaintiff here has misconceived and misdescribed the
liability of the defendant, and has confounded together two things as distinct
as they can be from each other. The rule for a new trial must be absolute.
(a) 1 Hodges, 324.
Rule absolute.
A father ap-
pointed two
persons executors
of liis will, and
also guardians of
the persons and
estates of his
Rex v. Isley and Wife.
TN this case a rule had been obtained for a habeas corpus to bring up the
bodies of Matilda and Benjamin Harris, infants, in order to have them
delivered over to the custody of Samuel Gregory and fVilHam fVilkins, their
testamentary guardians, appointed by the will of their father. It appeared
from the affidavits in opposition to this rule, that Bjmjamin Harris, the tes-
quested'them,ac- tator, had married the daughter of Isley and his wife ; that they had afler-
oording to their ^i^^ds established themselves jn America, but upon the death of the testator's
diBcretion> to
cause bb children wifc they returned from America in consequence of a- letter received from
Si» hTu^and ^® tcstator, earnestly requesting them to come over and take care of the
educated:— H«tf, children. It appeared also, that the testator had always expressed an anxiety
that the children should be under the care and protectiori of their grand*
mother ; that she was devotedly fond of her grandchildren ;| that the infant
Benjamin Harris was a child of weak intellects, and both wal^ in a delicate
chUdren, and the ^xztA of health, requiring great care and attention, and that the grandmother
Court therefore
took them out
of the custody of the grandfather and grandmother, against whom there was iio objection whatever, and
who, at the desire of the father, had come over from Ammcm to take care of them, and directed that they
should be given up to the guardians.
tliat this appoint-
ment gave Uie
guardians the
right to the cus-
tody of the
TRINITY TERM, 18S6.
197
TheKmo
Islet*
was extremely desirous to be permitted to have them under her care and KingU BenA,
management, that she might faithfully act in accordance with the last wish
and request expressed and made to her by her deceased daughter. In
support of the application, the words of the will were relied on, and they
were, *' I appoint the said Samuel Gregory and IVilUam fVilkins executors of
this my last will and testament, and also guardian and guardians of the
persons and estates of my children, and I earnestly request that my said
trustees and executors will, according to their discretion, cause my said
children to be properly brought up and educated."
Addison showed cause against the rule. — The applicants here are not
guardians within the meaning of the 12 Car, 3, c. 24, ss. 8 & 9. There is no
heritable property belonging to these children, and the statute was only intended
to apply to cases where there would have been before the statute guardians in
socage ; Bedell v. Constable (a). There is not any direct disposition of the cus-
tody of the children to these persons. They are merely directed to cause the
children to be properly brought up, which they can do well enough while
the children remain in the custody of their grandmother. There is no im-
proper restraint here, though even in a case of that kind Lord Mansfield
said, ** The Court is bound to set the infant free from any improper re-
straint, but is not bound to deliver it over to any person'* (6). The ad*
vantage of the children is to be consulted; Lyons v. Blehcofve(c), If the
arrangement here was for the benefit of the children, the father himself
could not afterwards recall it ; and here it would be doubly hard upon the
grandfather and grandmother, for they gave up advantages of their own in
order to come over and take care of these children, which they did at the
father's request.
Erie and P. B. Leigh, in support of the rule. — The terms of the wjD
sufficiently invest these parties with the rights of testamentary guardians,
and with power to claim the custody of the children. The case of Bedell v.
Constable only shows that a testamentary guardian is bound to show
that he was appointed guardian in socage. But other cases do not go to
that extent. Rex v. Johnson {d) is in point. There the Court, after consi-
deration, handed over the infant to the care of the guardian appointed by the
father's will, although there appeared to be no reason to impeach the con-
duct of the nurse in whose custody she then was. The cases are all referred
to there or in Rex v. Delaval (e). The fact that these persons came over
from America at the father* s request, is not so strong against his right to
dispose of the custody of his children as the covenant entered into by the
Earl of Westmeath to allow his children to remain under the care of his wife;
yet in that case (/) the Lord Chancellor took the children out of the custody
of the mother and delivered them up to the father. The authorities col-
lected in Comyn's Digest {g) show that a guardian has the same interest and
authority as a parent, and that doctrine has always been recognized ; and in
(a) Vaugfaan, 177 and 183.
(6) Rtx V. D9lavQl, 3 Burr. 1436.
(e) 1 Jac. 245.
id) Str. 579.
(e) Sir W. Bla. 410.
(/) £x fMrt« WntmMlh, I Jac 251, a.
(^) Tit. Guardian in Socagt,
The King
V.
IlLXT.
198 TERM REPORTS in thi KING'S BENCH.
i Bmch. Rex ▼• Delacal Lord Marufield distinctly founded himself upon the right of
the Court to act upon its discretion in cases like the present.
Lord Denman, C. J. — I do not find it argued that this will did not ex-
press the actual will of the father in May last. By that will he appointed
these persons his executors, and gave them the powers of guardians over his
children. Under these circumstances, though our discretion is not com-
pletely tied up, still we cannot do what appears to be a tampering with the
rights of the guardians. There is no statement that they are unfit to have
the custody of the children, and therefore we must give them that custody.
LiTTLSDALE, J. concurrcd.
Pattbson, J. — ^Thia case came before me at chambers, and I then declined
to interfere without being satisfied that the father intended that the custody
of these children should be changed. I cannot say that I am fully satisfied
on that point now, but still I think there is not sufficient to justify us in
withholding from the guardians the custody of the children thus put under
their care.
Rule absolute (a),
(a) fKi//iamf, J. had left the Court
Wb«re a parish
apprentice leaves
the service of liis
original master
and enters the
service of a
second master,
there mast be, for
the porpose of the
apprentice gaining
a settlement ander
sach second
service, a clear
assent by the first
mastpr to the par-
ticular service
with the second
master.
Since the fi6
G. S« c. 139, that
assent most be
given with tlM
consent of the
jostices.
Rex v. The Inhabitants of Maidstone.
npHE Sessions confirmed an order of justices for removing Benjamin Dry-
wood, his wife and three children, from St. Mary, Northgate, in the city
of Canterbury, to the town of Maidstone, subject to the opinion of this
Court on the following case : —
The pauper Drywood was in June, 1814, bound as a parish apprentice to
one Pollard of Milton, basket maker, with whom he lived under the inden-
ture at Milton until August 1816, when Pollard failed, and having no means
of employing him, Drywood expressed a wish to go and endeavour to procure
work in the basket making business, and mentioned Maidstone as a place
where it was likely to be procured. There were at that time several basket
makers in Maidstone, but no mention was made of the name of any of them.
Pollard consented to the pauper's going, but said, that if he got work, he
(Po//ar(f) should expect to be allowed a trifle out of the wsges. To this the
pauper assented, and he thereupon left Milton, Pollard heard no more of
Drywood, nor did he make any inquiry about him, but having occasion to go
to Maidstone in November or December the same year, he casually heard from
a traveller that Drywood was then working with a basket maker named
Peters in that town ; he called on Peters, and found Drywood there, and it
appeared that he had worked and resided there upwards of forty days before
the 1st October, 1816, on which day the statute 56 Geo. 3, c. 1^9, came into
operation. Pollard then asked for a portion of Drywood's wages, but being
told by Peters that the wages were barely sufficient for Drywood's support,
he went away ; the pauper continued after this to work for Peters, and to
reside in Maidstone several months^ when he left that place ; but he never
TRINITY TERM, 1636. 1 99
returned into PoUard^s service, or paid bim any thing On account of what he KingU Bmeh.
earned. The question for the decision of this Court is, whether the senrice ^^^^^
and residence of Dryxoood with Ptten^ as above mentioned, were sufficient to ^^ '"^
confer a settlement in that parish. If this Court shall decide this question lobalntaoti of
in the affirmative, the order of Sessions is to be confirmed; if otherwise, to Maimtohe.
be quashed.
KtUy and Shea^ in support of the order of Sessions. — ^The second service
here can be connected with the first so as to make the second a service under
the indenture. The master here must be taken to have assented to the
change, so as to make the service at Makfitome a service under his authority.
One of the latest cases on this subject is that of Tke King v. Banhun/ (a),
where the service under the second master was held sufficient. The Uict
that there was no assent of the master before the service, and no assent given
with regard to a person particularly named, does not make a sufficient dis*
tinction between that case and the present ; for in this there was something
equivalent to it, if not stronger, namely, that the master stipulated lo have
some of the wages gained by this apprentice in the second service, so that
the master claimed to have a positive interest in that service. Unless the
relation of master and apprentice, created between these parties under the
indenture, continued to exist, the master could have no right to make any
demand of that kind. Rex v. Whitchurch (b) and Res v. Crediion (c) are
distinguishable from the present, and the former of these must be coih
sidered as having been overruled by Rex v. Banbuiy. It may be admitted
that there must be an assent to the service, but it need not precede the
service ; Rex v. BraiLtone (d) and Rex v. Bradwinch (e). The statute 66
Geo, 3, c. IS9, does not affect the present case, for before that statute came
into operation the pauper had worked above forty days with his second
master, and even if the assent of the first master to that service is not sup-'
posed to have been given till he found his apprentice working for Peiersp
still that assent, when given, must be taken to have relation back to the time
of the commencement of the service, and to have made it from the first a
service under his authority.
Bodkin and Dcedes, cofr/rd.— The statute applies directly to this case, and
the subsequent assent of tlie master, even if in itself sufficient for other
purposes, cannot have relation back to the commencement of the service,
but must be taken with reference only to the time when it was given, and
then the statute applies and makes it, as an assent without the consent of the
jusdces, insufficient. All the cases cited on the other side show that there
must be a clear and express assent of the master. There is none in this
ease. The assent here given, if it was an assent at all, was qualified in its
object and its terms, and no settlement therefore can be gained under it ;
Rix V. Shehbear (/). The doctrine supposed to be laid down in Rex ▼.
Bradutone (g) was expressly overruled in Rex v. Whitchurch (h), where it
was said, '* It has been urged that the subsequent assent of the first master
(a) 5 Ban. & Ad. 17^. («) Csld. 461.
(6) 1 Bam. & Crets. 574. (/} 1 Estt, 73.
(e) 1 East, 69. (g) S Bott, 434.
(d) 2 Bott, 434. i^k) 1 Bam. & Cress. 574.
200 TERM REPORTS iit ths KING'S BENCH.
KmgU Bench, ^^ sufficient to make the second service a service under the indenture, but the
v^^''^ contrary is established by Res v. St, Helena Sionegate(ay* Rex v. Bnnhury
The Kino establishes the true rule respecting the assent of the master. He must give
Inhabiunu of ^> assent to the particular party with whom the apprentice is to serve.
Maiostoks.
Lord Demhan, C. J. — The decision in The King v. Banbury was not
intended at all to interfere with the decisions in former cases, nor at all to
controvert the rule laid down by the decision in The King v. IVhitchurch,
On the contrary, it was intended that that case should be considered as
establishing the rule. There must be an assent by the first master to the
particular service to the second, so as to connect the latter with a service
under the original indenture. Now that has clearly not been the case here,
unless you can import into the case the assent which was given to the par-
ticular service subsequent to the passing of the 56 Geo, 3, c. 1^9. But in
order to gain a settlement under an assignment of apprenticeship, without
the consent of justices, such an assignment must have been made before the
passing of that act, and in the present case no assent was given to the par-
ticular service with Peter$ until after the passing of that act. The pauper
therefore gained no settlement under that service.
LiTTLEDALE, J. — I am of the same opinion. The ground on which, before
the passing of the statute of SQ Qeo, 3, c. 139, an assent by the first master
to the service of the apprentice with a second master, was sufficient to make
that second service a service under the indenture, was, that the consent was
in the nature of an agreement or parol assignment by the first master of the
apprentice, for it is only upon that ground that the second service could be
considered as a service under the indenture. . Now here Pollard knew
nothing at all about the pauper's service with Peters at Maidstone until
NooembeTf 1816, so that until that time there could not be said to be any
such parol assignment of the apprentice to Peters. As to the rati habitio in
this case, that was not until after the passing of the act, when the provisions
of the act interposed and prevented the first master from making any such
transfer of the apprentice except with the assent of justices.
Patteson, J. — ^The question in this case is, whether there was any assent
by the first master to the service with the second. Rex v. Banbury is not in
point, for that case was not decided on that question. The resolution of
that question in the present instance depends upon whether the first master
accidently calling in November or December, 1816, at the house of Peters^
with whom the pauper was then working, and asking for a portion of Dry^
ooocTs wages, is to have relation back so as to operate as a consent by him
to the service with Peters from the time when that service commenced.
There are no cases which have decided that a subsequent assent will have
any such operation. In The King v. Bradwinch and The King v. Bradstone^
the service was subsequent to the time when the assent of the first master
was given. But here no such service could possibly have operated to give a
settlement, because the statute 56 Geo, 3, c. 139, which had come into ope-
ration before the assent was given, requires certain provisions to be complied
with on the assignment of parish apprentices, which were not complied with
(a) 1 East, 285.
TRINITY TERM, 1886. 201
in die present case. In the absence, therefore, of any authority to show King*t Bneh.
that a subsequent assent has relation back to the time when the second xiT^
service commenced, I am of opinion that no settlement was gained in this p.
case. Inhabitants of
Maidstomb.
Williams, J. — In a case like the present no settlement can be gained at
all where there has not been a proper assignment. The ground on which a
settlement has been held to be gained by a service with a second master, is,
that the service has been considered a service under the original indenture.
In order to arrive at the conclusion that it is so, it seems reasonable that the
party to whom the apprentice was originally bound should know with whom
the apprentice was to continue his service, and it therefore is very easy to
comprehend why a general permission to go and serve whom he pleased
should not be held sufficient, but that a particular assent to the service with
a particular individual should be required. That is the ground of the
decision in Rex v. Banbury, There the person with whom the pauper was
about to serve was pointed out to the first master. There was a knowledge
on his part of that person, and a particular assent on the part of the first
master for the apprentice to serve with him. There is no such knowledge
nor assent here in the original part of the transaction. I will not say whe-
ther the subsequent assent would have been sufficient, without the statute, to
have made a previous service and residence confer a settlement. That
statute rendered any assignment by mere assent, without the consent of the
justices, altogether invalid, and no settlement could be gained by service
under it.
Order quashed.
Rex v. John Johnson.
¥N this case a rule had been obtained' for a certiorari to remove, for the a vote oft vestry
purpose of quashing the order of the Quarter Sessions of Chester, •«thoriiiug the
confirming an order of two justices for allowing the accounts of Thomas overseen of cMti
Goulbum and fVUliam Witter, overseers of the poor of the parish of Clatton l"*""^^**! ^*«^
___,-,., -x^t mi 111 1 *^ defpnding their
Bqfield, m the county of Chester, There had been an appeal agamst the ecooonts, is ted,
overseers' accounts, and the Sessions had dismissed that appeal, but had not g^"*^"**/^
given costs. The vestry had then voted that the costs in defending that snbeeqneot «>
appeal should be paid to the overseers. These costs formed an item in the ^"h MjmTnt*^**
overseers' subsequent accounts, which were now objected to on that ground, formed one of the
That item was in the following terms: — •* Paid to Mr. Hostage, for preparing ^^^^^
for trial, attending Sessions, counsellor's fees, defending the appeal against
the overseers' accounts at the Quarter Sessions in Juljf and October,
^SL lis. 4d," The justices had allowed the accounts with this item, and
the Sessions had confirmed the allowance. It was this confirmatory order
that was now brought up by certiorari.
W. H, Watson, showed cause against the rule. — The parish had a right
to defend the overseers' accounts, and to charge the expenses of that defence
upon the rates. In Rex v. Gwyer, Mr. Justice Taunton, adopting a passage
202 TERM REPORTS in the KING'S BENCH.
KingU Btnch. Arofn Mr. fVUcock's ** Treatise on the Laws relating to the ordering Relief
^'^^^^^ and Settlement of the Poor," says {a\ ** The overseers are entitled to charge
The KiMo Jq iheir accounts whatever they have spent for the parish under the direction
Johnson. of any statute, order of justices, or legal process, for the costs of an order of
maintenance or removal, or of an appeal, although decided against them,
unless they have been guilty of gross misconduct, or of neglecting to consult
the vestry as to the propriety of proceeding in it when there was convenient
opportunity, in repaying the legal disbursements of constables, and all other
money fairly laid out in the business of the parish." That case fully jus-
tifies the order for the payment of this money. There does not appear any
thing on the face of the accounts themselves which ought not to be allowed,
and if the order of Sessions is good upon the &ce of it, this Court will not
look at any thing beyond them in order to impeach the validity of the order
of justices; Rex v. James {h).
Sir W. FoUett and ChandksSf in support of the rule.— If the Court is to
decide upon the very sentence quoted from Mr. Justice TVnintoii*^ judgment,
this rule must be made absolute. What is the meaning of ** an appeal" in
that sentence ? Certainly not an appeal upon any thing that relates to the per-
sonal conduct or the accounts of the overseers. But here the costs allowed
are costs occasioned by defending these very accounts, and therefore by de-
fending something that relates to the personal conduct of the overseers. —
\^WiUianUf J. — May not the parish be interested in the question ?] — Yes, as
. against the overseers, but not otherwise. There was an appeal against the
overseers' accounts, on the ground that the overseers had improperly
charged the parish with monies which it ought not to have paid. The costs
of that appeal were not given to the overseers by the justices, but the sum
now objected to was afterwards allowed to them by the vestry as the costs
of defending that appeal. The law never intended that in such a case the
overseers should be paid out of the funds of the parish.— [Lord Den^
nuMf C. J. — Suppose a case where the vestry thinks fit to vote that an
appeal upon a new point shall be defended, and it is defended successfully,
but because it is a new case the Sessions do not give costs, must the over-
seers nevertheless bear the expense of the appeal?] — They must. The
judgment of Mr. Justice M^Uiams in Res v. Gwyer (c) put the case upon
the true ground, namely, that *' rates must be applied strictly in a particular
way, unless any law can be shown authorizing a difierent disposition of
them." There is no such law here. — [Lord Denman^ C. J. — That was a
case of relieving overseers from the performance of a duty at the expense of
the parish.] — And here it is a case of relieving overseers from the expense
of defending their own personal conduct, into which the parish has an interest
to examine.
Lord Denkan, C. J. — We have suggested the strongest case we can con-
ceive to show that it might be possible that the item now objected to might
be legal. But upon consideration we cannot say that it is so. The vestry
cannot bind the parish to any extent tliey please. The law imposes certain
duties upon the overseers, and they must perform those duties or take on
(a) 2 Ad. k £11. 226. (h) 2 Maul. & Selw. 321. (c) 2 Ad. k £U. 229.
The Kino
0.
TRINITY TERM, I8S6. 203
ihemaelveB the oonsequences of failing in their performance. This is a King*t BmoA.
personal matter for the overseers. The appeal was an appeal against them
personally, and they have no right to charge the parish with the expense
thereby incurred. Jobksow.
LiTTLSDALB, J. — I am of the same opinion. We cannot allow parish
officers to defend themselves, at the expense of the parish, against complaints
of their accounts made on behalf of the parish. The case put by the Court
in the course of the argument is the strongest that can be imagined, and that
case does not come up to the point now contended for. Because the jus-
tices did not give costs, the vestry thought fit to allow them ; but the jus*
tices were the proper persons to decide in such a matter. We cannot permit
costs to be given to overseers by means which the law does not allow. The
appeal was against these overseers personally, and they must personally
bear the consequences.
Pattbson, J. — If we could suppose in any possible way this item in their
accounts to be legal, we should rather be bound to suppose it in a case like
the present than to refuse to do so, but we cannot. Even if the whole
Testry had voted this account, and the appellant himself, as one of the
Testry, had assented to it, I am hardly prepared to say that it would have
been legal.
Williams, J.— I am quite of the same opinion. The presumption is
against there being any interest in the parish except to reduce to as low an
amount as possible the allowance of the accounts. There is nothing that
could legalize this payment.
Order of Sessions quashed.
Lake v. Ruffle.
/ASSUMPSIT by the payee against the maker of a promissory note. Pfea, a repUcatioo to ■
that the plaintiff, at the time of makinsr the said note, was, and that she ?>•• *»/ <»»eiture,
.„.,.- ^ «»-»>,..,/. 1 /. 1 that the plain-
still IS the wife of one S. L, Replication^ that for seven years before the tiff*thasbMidbMi
makii^ of the note, the said S. Z. had been, and that he still was abroad and •^" ^^""^ '^
° . ' seven yean, and
absent from the plaintiff, and was not known by the plaintiff to be living wa» not known by
within that time. Special demurrer, that the replication is argumentative ; {i^Jg withfn OiaT
that the plaintiff, instead of pleading that her husband is dead, pleads cir- time, u bad.
comstances from which she wishes to raise the legal presumption of his
death, and that the replication insufficiently sets forth the circumstances to
raise that presumption. Joinder in demurrer.
G. T. JVhite was in support of the demurrer.
we was called upon to support the replication. — The circumstances
which furnish the answer to the plea can only be stated in the way adopted
m this replication. The plaintiff cannot aver that her husband is dead ; it is
sufficient if she shows circumstances that enable her, though a married
woman, ta contract as a feme sole. She has stated those circumstances in
204 TERM REPORTS ik the KING'S BENCH.
King't Btneh. ^^ replication. The defendant should have taken issue on the facts there
v^v^^ stated, for if established in evidence, they would form an answer in law to
Laib his defence.
V.
RXJFTLB.
Per Cunam.— There is no ground for saying that a replication stating that
a woman's husband has been abroad for seven years, and has not been heard
of by her during that time, is a good answer to the plea of coverture. The
replication can hardly be said to be even argumentative, for it only states
something from which an answer to the defence might be inferred.
Judgment for the defendant.
Hayselden V. Staff.
Anumfrit tm tbo JNDEBITATUS ASSUMPSIT for work and labour as a builder, and
coouDon money for materials found, and upon an account stated. The declaration alleged,
tib« osaai form'* accordiug to the usual form, that the defendant promised to pay on request,
promise to pay on PUa, as to all but a sum of 7s, 8(/., non assumpgit. As to that sum, payment,
fint, except u to And as to the sum of 1/. 0«. 9(/., other parcel, &c., and parcel for which the
pwt.MNMnMVP- defendant is alleged to be indebted to the plaintiff for work and materials,
4W * SeCODQlV U O & '
to that part, pay- the defendant says, that the work and materials in respect of which he is
that Uieworkand' ^^ *® ^® ®® indebted was work done, and the materials were provided for
labonr had been the same by the plaintiff for the defendant, in and about the endeavouring to
materUJt fll^ prevent a certain chimney from smoking, and which said work was so done,
nished under an and the materials provided upon the terms, &c. between the plaintiff and the
the piatotiff defendant, that the plaintiff should not be paid for the said work and mate*
•**^*** "fSr* "als, or any part thereof, unless he should succeed in preventing the said
work should tarn chimney from so smoking as aforesaid : amd the said defendant further says,
and UMaTirhad*' *^®' ^® ^*^ plaintiff hath not succeeded in preventing the said chimney
done •o.—BM, from smokiug as aforesaid, but that the same hath from that time continued,
WM Gallon ^^^ ^^'^^ ^^^^ continue to smoke, notwithstanding the said last-mentioned
specui de- work and materials done and provided ; and this the defendant is ready to
ing'tTtbe**^'"**' Verify, &c. Special demurrer, that the plea amounted to the general issue,
general iasne. and tended to unnecessary prolixity of pleading : that it was an argument
tative, evasive, and indirect denial of the cause of action, and that it did not
well and sufficiently traverse or confess and avoid.
Busbj/t in support of the demurrer. — The plea is bad ; it amounts to the
general issue. In Comyn's Digest (a) it is said, that " where a man has no
special matter for his justificatfon or exeuse, he ought to plead the general
issue to avoid prolixity in records, and therefore a plea which amounts to the
general issue is bad ;*' and among the illustrations given of this position
are these : " In assumpsit, if the defendant pleads a bond given for the debt,
and traverses that he was indebted aliter aut alio modo, or pleads another pro-
mise and traverses the assumpsit modo et forma," it is bad. 1'he present plea is a
dear violation of that rule, which was expsessly recognized in Carr v. Hinck'
Iiff(b). The defendant cannot, as in this insunce, take one part of the
(a) Pleader, Plea (E 13-14) (b) 4 Baro. & Cms. 547.
TRINITY TERM, 1836.
206
Haysbloeh
V.
Staff.
pUuntiff'i demand, and plead specially to that where his pleading really goes, jOn^'i Bmeh.
as it does here to deny the whole cause of action.
Martin, contrd. — ^The plea is good at common law. But whether it is so
or not, it is clear that the defendant was by the late rules bound to plead in
this manner. By them it is declared (a), that '* in all actions of auumptitf
€xcept on bills of exchange and promissory notes, the plea of non assumpnt
shall operate only as a denial in fact of the express contract or promise
allied, or of the matters of fact from which the contract or promise alleged
may be implied by law." Such matters in the present case are the doing of
the work and the furnishing of the materials at the request of the defendant.
This is a plea in confession and avoidance ; it confesses the work, but avoids
the promise by subsequent matter. If the new rules required the con-
fession of the debt, the argument on the other side would be good ; but as
they require only the confession of the matters from which that debt may be
implied, the argument cannot be supported. One of the illustrations intro-
duced into the new rules shows that the plea is good. It says, '* In indebi-
tatus assumpnt for goods sold and delivered, the plea of non assumpsit will
operate as a denial of the sale and delivery in point of fact." It was not the
supply of these materials in point of fact that the defendant wished to deny,
but to show that the contract under which they were delivered was con-
ditional. It therefore became incumbent on him to set forth the condition
in his plea. Another of the new rules (6) says, ** In every species of as-
sumpsit, all matters in confession and avoidance, including not only those by
way of discharge, but those which show the transaction to be either void or
voidable in point of law, on the ground of fraud or otherwise, shall be
specially pleaded." Now it is clear that if the transaction was void, no debt
could ever arise, and a plea of that sort might be contended to be a plea
amounting only to the general issue. Yet the words of the rule expressly
require such a defence to be pleaded. In Potts v. Sparrow (c), the Court of
Comwum Fleas held upon this rule, that though a contract was void as illegal,
still the matter must be specially pleaded. Edmunds v. Harris (d) is a
stronger case than this, for there the Court held, that under a plea that
** the defendant never was indebted as in the declaration was alleged"
the defendant could not give in evidence the defence that the goods were
sold on a credit not yet expired. — [Lord Denman^ C. J. — ^That case is in
point in your favour, if it is rightly decided. All the other cases are those
of matters dehors the contract ; here it is a part of the contract. That case
has been doubted very much, and it appears in principle very questionable
whether such a plea is not a complete denial of the promise modo et formd.
The example of goods sold and delivered, as given in the new rules, is
perhaps not quite so exact as could have been wished.] — ^The plaintiff here
was employed to do certain work, and he stated such facts only as would
raise an implied promise in law. The defendant's defence, though con-
nected with the contract, arose out of circumstances not stated in the decla-
ration, and he was therefore obliged to state it in his plea.— [Po^toMm, J.—
The denial of the sale and delivery is understood of the sale and delivery as
stated in the declaration. Now in assumpsit this is usually alleged to be a
(«) R«r. Gen. 4, 7. 4 W. 4, t. I.
<6) H.T.4 ir.4,t.d.
(c) 1 Hodg«s, 135, and 1 Bing. N. C. 594 ;
see tiso Bamttt v. Ghuop, 1 Hodges, 94.
(d) 2 Ad. & £U. 414 : 4 Nev. & Mtn.
182.
206 T£RM REPORTS m the KING'S BENCH.
King'iBeneh. sale and delivery on request ; but if the payment is to be made on a future
^^^^^ day, that is not a sale and delivery to pay on request. Your plea says that
▲TMLosN ^^ plaintiff is not entitled for work and labour to pay on request, but to
Staff. pay oo certain conditions.] — It does so, and that is necessary under the new
rules. The case of Edmunds v. Harris has never been declared to be
doubted. In WaddiUne v. Bamett{fl), which was an action for use and
occupation, the defendant was permitted to give in evidence under the
general issue, a notice to pay rent to a mortgagee, such evidence being held
admissible with respect to rent becoming due after the notice. In Bird v.
Higginson a ground of objection similar to the present was taken, but the
plea was held to be good. These are cases which have occurred since the
new rules. But the plea is good at common law. When the plaintiff has
colour, the defendant may plead speciaUy ; Stephen on Pleading (6).
Bvsby, in reply. — No judgment was ddivered on this point in Bird v.
Higginson (c). With respect to fVaddilave v. Bamett, the Court of Common
Pie&s in substance decided, not that the defendant could give evidence of
the mortgage under the general issue, but that after notice the holding was
not use and occupation under the or^nal landlord, but by the sufferance of
the mortgagee. The illustrations of the new rules referred to on the other
aide are not in point in the present case.
Lord Denman, C. J. — ^This is a case of general importance. We do not
mean to be bound by any thing we have thrown out in the course of the
argument.
Cur. adv, vnlt»
Lord DsNicAK, C. J., on the last day of the term, delivered judgment.
After stating the declaration and plea, he proceeded as follows : — To this
plea there is a demurrer, which assigns for special causes that it amounts to
the general issue : that it is an argumentative and evasive and indirect denial
of the cause of action : that it does not suflSciently traverse or confess and
avoid the cause of action. It must first be considered whether the defence
set up in the plea could be given in evidence under the plea of non assumpsit;
because, if it could not, then there is no ground for the demurrer. There
is no doubt but it might have been so before the new rules, because, not
only might the fact of the actual contract itself have been denied^ but it
might also have been shown that it was void in law, or that the contract had
been performed, or that the defendant was excused from the performance of
it by many other circumstances. But since the new rules, (which rules have
the force and effect of an act of parliament) in actions of assumpsit " the
plea of Mm assumpsit is to operate only as a denial in fact of the express
contract or promise alleged, or of the matters of fact from which the con-
tract or promise alleged may be implied by law. In actions of assumpsit for
goods sold and delivered, the plea of non assumpsit is to operate as a denial
of the sale and delivery in point of fact, and in every species of assumpnt all
matters in confession and avoidance, including not only those by way of
(d) 1 Hodges, 395 i 2 Biog. N. C. 558. (c) 1 Har. & Wol. 61 ; 2 Ad. & £11.696 ;
(k) Psg«4ai. 4 Nev. & Man. 506.
TRINITY TERM, 1836. 207
but those which show the transactioo to be either Toid or voidable Kkig*» Beuk.
Id point of law, on the ground of fraud or otherwise, must be specially ^^v^^
pleaded." One of the general objects of these new rules was to compel a H^^^*^**''
defendant to put his defence specially upon the record ; and in conformity Staft.
with this object, the case of Edmunds v. Harris (a) was decided* That was
an action of debt for goods sold and delivered, to be paid for on requettf
(and which aa to this is the same thing as mdebUatus assumpsit) to which
there was a plea of nunquam imdebiUUuSf and at the trial the defendant pro*
posed to prove that the goods were sold on a credit which had not expired
when the action was brought ; and on a question whether this defence was
admissible on the general issue, the Court of King*s Bench held that it waa
not ; that it ought to have been specially pleaded, and that it was one of the
cases which the new rules were framed to avoid. But that case was doubted
in Taylor v. Hillary (6), on the ground that if the time of credit had not
expired the plaintiff would prove a different contract from that which he had
stated in the declaration, which was to pay on request; and so also in Knapp
T. Harden (c), Mr. Baron Parke considered it as doubtful whether Edmunds
V. Harris was properly decided. We think, therefore, that the case of
Edmunds v. Harris cannot be considered as a binding authority, and if not,
as the defence set up on this record shows a different contract from that
which is stated in the declaration, inasmuch as the contract stated in the
plea is, that the money should be paid on a certain condition, which has not
been performed ; it is not a contract to pay upon request^ and therefcure the
defence might have been gone into upon the general issue. And in the case
of IFaddiloee V- Bamett{d)i which was an action for use and occupatioD, it
was determined by the Court, afler considering the effect of the new rules,
that under the issue of non assu$npnt the defendant might give in evidence
that the plaintiff had mortgaged the premises before the defendant came into
the occupation, and that the mortgagee had given notice to the defendant not
to pay the plaintiff any rent becoming due afler such notice. But though
the defence might be gone into under the general issue, it does not necessarily
follow that the defence may not be specially pleaded. In the case of Corr
V. Hinchltff{e\ a defence was put upon the record, which it was admitted
might have been gone into upon the general issue, and yet it was allowed to
be a good plea. That was an action for goods sold and delivered, and the
plea was, that the goods were sold by the plaintiff as the agent of a tUrd
person, with the proper averments of want of knowledge &c., and then the
defendant set off a debt due from that third person. The question waa
much considered in that case, but there, in the first instance, a complete con-
tract was admitted by the plea, showing a prtmd fade liability in the defend**
ant to the action, because, independently of the set-off, the defendant would
have been liable. There was, therefore, a confession of the contract stated
by the plaintiff, but the plea stated matter which avoided that contract so
far as to exonerate the defendant from the performance of it. There is a
great distinction between the case of a plea which amounts to the general
issue, and that of a plea which merely discloses matter that may be given
(a) 4 Nev. & Man. 182 ; 2 Ad. & £11. 41 4. (d) 1 Hodges, 395 ; 2 Bing. N. C. 538.
(b) 1 Gale, 22 ; 1 Crom. Mee.& Rose. 741. («} 7 D. & R. 42 : 4 B. & C. 547.
(0 1 Gale, 47.
208 TERM REPORTS in thb KING'S BENCH.
King*i BeneK in evidence under the general issue. In the latter case, though, as has been
■'-^'^ observed in the earlier part of this judgment, various things enumerated may
T8£LD£K |^ given iu evidence under the general issue, independently of any of the
Staff. new rules, yet it is incorrect to say these things amount to the general issue ;
they only defeat the contract ; but, what in correct language may be said to
amount to the general issue, is, a plea containing an allegation that for some
reason specially stated the contract does not exist in the form in which it is
alleged, and where that is the case, the plea, instead of a direct denial, pre-
sents an argumentative denial of the contract, which, according to the esta-
blished rule of pleading, is not allowed. The allegation in the declaration
here is^ that the defendant is indebted for work and labour and roateriab,
and that being so, he promised to pay on request. The plea does not con-
fess that the defendant was indebted at all ; it admits that work was done
and that materials were found and provided ; but instead of confessing that
any debt was created by that, and showing any thing to avoid it, he said no
money was to be paid unless the chimney was cured from smoking, which
was not done. This is really saying in most distinct terms, that no debt ever
arose, and it therefore falls completely within the meaning of what may be
called an argumentative denial of the debt. In Solly v. Neish (a), the decla-
ration was for money had and received ; the defendant pleaded that the
money was the proceeds of goods pledged to the defendant, with a power of
sale, by persons who allowed the plaintiff to hold the goods as his own, when
they were in fact the property of those persons and the plaintiff, and that
the defendant was willing to set off against the proceeds of the goods the
advances which had been made on them. There were subsequently plead-
ings which led to a demurrer. The Court, though they gave judgment for
the defendant, said the plea would be bad on special demurrer. In Oard'
nor V. Alexander (6), the declaration was for goods bargained and sold. The
defence was, that the goods were sold under a special contract that they
should be shipped within the current month, and landed in London within a
g^ven time, which was not done. On an application to plead several matters,
the question was, whether these facts could have been given in evidence
under the general issue, or whether it was necessary to plead them specially.
The Court of Common Fleas said it was unnecessary to plead them ; the
special contract might be given in evidence under the general issue ; and in
Cousins v. Paddon (c), in the Exchequer, Michaelmas Term, 1835, it was held,
that in debt for goods sold and delivered and work and labour, the defendant
may give in evidence, under the general plea of nunquam indebitatus, that the
goods were worthless and the work useless. Upon the whole, therefore,
we are of opinion that the plea now before us cannot be supported, and
that there must be judgment for the plaintiff.
Judgment for the plaintiff.
(a) 1 Gale. 227. (e) 1 Gale, 305; 2 Crom. Mee. k Roic.
(6) 3 Dowl. P. C. 146 ; and on motion 547.
for a new trial, 1 Hedges, 147.
TRINITY TERM, 1836. 209
King'i Bench.
Rex v. The Inhabitants of Sourton.
TJPON appeal against an order by which Ann Tickle Sopcr^ spinster, was Neither the bos-
removed from the parish of Lamerton, in the county of Devon, to the cante^aikryMy
parish of Sourton, the sessions confirmed the order, subject to the opinion of questions which
this Court upon the following case :— The respondente proved the birth of pJI,^ non.°ccS^
the pauper 25 years ago in the parish of Sourton, and there rested their ^ i»<iirpctiy but
case. The appellants called John Tickle, who proved that he had been JTth^^e'Lu-
married to the pauper's mother in the parish of Sourton seven or eight years «'«»«>»•
before the pauper was born, which was further proved by an examined copy
of the marriage register ; he then proved that he had since gained a settle-
ment by renting a tenement which he had occupied about 25 years at
Clifton. l*he respondents relied on proving the non-access of Tickle and his
wife, and thereby the illegitimacy of the pauper. They called one Soper,
and partly from his evidence, and partly from the cross-examination of John
Tickle, the sessions found the following facts : — that the mother's general
residence for a year previous to the birth of the pauper was in Sourton :
that the pauper went by the name of Ann Tickle, though she was called Ann
Tickle Soper in the order of removal : that Tickle had removed from Sourton
to Clifton (one hundred miles distant) about five years before the pauper's
birth, and that his general residence from that period to the present had
been at the latter place. It further appeared from the cross-examination of
Tickle, that during his residence at Clifton he had been living in incestuous
intercourse with his wife's sister, who had borne him children. The sessions
were satisfied with the proof of non-access, if they were right in admitting
the evidence of Tickle, without which they had no sufficient grounds to find
the fact of non-access. If that evidence was inadmissible, the order was to
be quashed ; if it was admissilble, the order was to be confirmed.
Praed, in support of the order of sessions. — Tickle gave no evidence that
he was not entitled to give. In Rex v. Bromley (a) the reputed mother was
allowed to be a competent witness to prove the illegitimacy of her children,
and the tiame principle was adopted in Standen v. Standen{h), where the
father was admitted to prove that the first marriage was invalid, though the
effect was to bastardise the children of that marriage ; and in Standen v.
Edwards (c), this rule of his admissibility was recognized. — [Lord Denman,
C. J. — The question there was on the validity of the marriage itself, but
here the marriage is proved, and the witness is examined to prove something
independent of the marriage.] — But the effect of the evidence is the same
in both cases. It may be admitted that the party could not directly deny
access, but still he may prove circumstances from which the Court may say
whether access took place or not. The wife may not be a witness against
an assumption of law, but the law will not assume an impossibility, and she
may with other witnesses prove the circumstances which constitute the im-
possibility ; Rexv. Bedel (d). In that case it appears from the statement
(a) 6 Tenn Rep. 330. (d) Cos. TeiDR. Uiid. 379; 2 Str. 1076;
(ft) Id. 331, n., and FMa's N. P. 45. Andr. 8.
(c) 1 Ves.jun. 133.
VOL. II. r
210 TERM REPORTS in the KINGS BENCH.
King*i Bench, of the case by the sessions, that the wife actually did swear to her husband^s
"^^^^ non-access. Rex v. Reading (a) will be cited as a leading case on the other
The Kino ^{^q^ but that went upon the ground that the wife was the sole witness ; and
iDhabitaDts of Lord Hardwicke there said, " But the present will not be a precedent to
SouBTON. determine any other case wherein there are other sufficient witnesses as to
the want of access ; the foundation that is now gone upon is the wife's being the
sole witness." The old doctrine of the Quatuor maria was first put an end
to hy Pendrell v. Petidrell (b)» The ruling in that case is expressly approved
of in Buller*s Ntsi Prius (c). This is not a case in which the husband's and
wife's interests are involved, and therefore cannot be aflTected by the prin-
ciple governing such cases ; it is a question between two parishes as to
which of them must support a pauper. Here the husband is called to prove
the legitimacy, for he is called to prove the birth during the marriage. He
may be cross-examined to show under what circumstances the birth took
place. — [Lord Denmany C. J. — Do you not assume too much in saying that
he is called to prove the legitimacy ? The birth during the marriage will
not alone prove the legitimacy, nor put an end to the question of his being
the father.] — The marriage and the birth during the marriage being proved,
the legitimacy would in ordinary cases be supplied by operation of law. —
[Lord Denman, C. J. — Then he would not be a witness to prove the legi-
timacy.]— He would, by proving circumstances from which the legitimacy
would be inferred. He may be cross-examined to show that such an in-
ference does not properly arise. The evidence here cannot be rejected
without excluding evidence in many cases where it is now clearly admissible.
Suppose a case of an action by a seaman for wages, could any other seaman
refuse to answer as to his being in the East Indies at a certain time, because
the effect of such evidence might be to show that children born during his
absence from his wife were illegitimate. The probable effect of evidence
cannot be considered in the question of its admissibility. All the cases
where evidence like the present has been rejected, have been cases where
the only evidence on the point was that of the husband or wife. Rex ▼.
Rook (d) was a case of that sort. Other questions except those of access or
non-access may be asked of the husband or wife ; Goodright d. Stevens v.
Moss (e) ; and that is all that was pretended to be done in this case. —
l^PattesoHf J. — It does not seem to me to be disputed that the parents may
be witnesses to bastardize the issue by other evidence than that of non-
access.] — Then this evidence is admissible, for it does not deny access, but
merely shews circumstances on which the Court may judge of the question of
legitimacy. In Rex v. Luffe (/), Lord Ellenborough, afler stating that a wife
may prove an adulterous intercourse, says (g), *' And by a parity of reasoning it
should seem, that if she be admitted as a witness of necessity to speak to the
fact of the adulterous intercourse, it might also perhaps be competent to her
to prove that the adulterer alone had that sort of intercourse with her by
which a child might be produced within the limits of time which nature
allows for parturition." — [Lord JDenman, C. J. — But in that case the Court
(a) Cas. Temp. Hard. 79 ; Andr. 1^. (d) I Wils. 340.
(6) 2 Str. 925, cited by Lord Ch. Talbot, («) Cowp. 591.
3 P. Wms. 276. (J) 8 Kast, 193.
(e) Pages 113,294. (g) Id. 203.
TRINITY TERM, 1836.
211
The King
17.
iDhabitants of
SOURTON.
did not act on her evidence alone. Rex v. Kca (a) is not an authority appli- Km^t Bench.
cable here, for there the direct question of access or non-access was put to
the wife. The husband here does not contradict the wife, for she has not
been examined, and her evidence is therefore admissible. Rex v. All
Saints (b), overruhng Rex v. Clitiger{c). Rex v. Bathwick{d)^ carried
that principle mucli further, and in a case between third parties allowed this
contradiction of the testimony of the husband by that of the wife.
Croxvder, contrd, was stopped.
Lord Denman, C. J. — We do not think it necessary that we should hear
the other side, as we are desirous of showing that we adhere to the old rule,
without intimating any doubt or hesitation upon the subject. That rule is
very correctly laid down by Mr. Starkie in his Treatise on the Law of
Evidence (e), and Lord Mansfield's opinion in the case of Goodright v. Moss,
and Lord Ellenborough's in Rex v. Kea^ are cited by him in support of it,
and it is to be taken as clear and indisputable law, that neither husband nor
wife can be admitted to prove the fact of non-access. The question then is,
whether the facts here bring this case within the rule. It would perhaps
have been desirable to have known precisely the questions asked and the
answers given by Tickle^ but it is impossible not to see upon the case itself
that the object of the cross-examination of the husband was to prove non-
access. He was asked questions on cross-examination tending to prove
facts, the necessary consequence of which, when proved, was to show the
impossibility of access by the witness, the husband, to his wife, the mother
of the pauper. If the husband had, with respect to other matters, stated
facts which the Court might take into consideration as ingredients for
forming an opinion on that question, such proof might have been admis-
sible ; but when the avowed purpose and object of the examination was to
prove the fact of non-access, it appears to me impossible to say that the rule
of law does not apply. The sessions, in stating this case, say, that it appears
from the examination of Tickle^ that during his residence at Clifton be lived
with his wife's sister, and that the sessions were satisfied of non-access if the
evidence of Tickle was admissible, but not so if it was not admissible. Here
tliere is evidence taken for the very purpose of proving non-access, and here
are the sessions deciding that matter expressly oh the evidence of the hus-
band. It is as clear, therefore, as words can make it, that the finding of the
sessions proceeded upon evidence which by a most undoubted rule of law
was not admissible. It is for the public advantage that that rule should be
strictly enforced. The order made in consequence of evidence obtained
through the non-observance of it must be quashed.
(a) 1 1 East, 132.
(6) 6 Maule&Sel. 194.
(c) 2 T. R. 263.
(d) 2 Barn. & Ad. 639.
(«) Vol. 2, p. 139, last edit, as follows : —
** Either of the pareDts is competeDt to prove
the bastardy of a child for want of a legal
marriage, although such evidence is open to
much observation. It has been said, that the
mother being a married woman, is not com-
petent to prove the non-access of the huiband,
as it seems upon a principle of public policy,
which prohibits the wife from being examined
against her husband in any matter which
affects his interest or character, unless in cases
of necessity, and on that account it is at all
events allowable to examine her as to the
fact of her criminal intercourse with another,
since it is a fact which must probably be
withio her own knowledge and that ot the
adulterer only.'*
it
p2
212 TERM REPORTS in the KING'S BENCH.
JTtii^'f Bmch, LiTTLEDALE, J. — At the sessions the material point in question was access
^"^^"^^ or non-access of the husband of the pauper's mother, and the question is,
The^ iNo whether the sessions were right in allowing the evidence of Tickle, the
Inhtbitants of husband, upon any matter necessarily leading to the proof of non-access.
SouRTON. I entirely agree with the rule of law upon this matter, as laid down by Mr.
Starkie in his Law of Evidence, and it appears to me that the rule so laid
down goes further than to say that the parents are incompetent to prove
non-access in direct terms. The rule extends to shut out their testimony in
all cases whatever where their evidence tends to prove the fact of non-
access. Suppose an issue sent from the Court of Chancery to try the ques-
tion legitimate or illegitimate, but sent in this form, whether, a marriage
being admitted, the husband and wife not living together when the child
was born, it was legitimate or not. In such an issue, in my view of the
case, the evidence of neither husband nor wife would be admissible at all ;
but that immediately it was made to appear that they were husband and
wife, the question of access or non-access could not be put to either of them.
Tickle might be examined as to his residence in Clifton and as to other
matters, but the sessions here admit that the other parts of the case did not
affect the settlement, and that the whole and avowed object of the cross-
examination was to prove non-access. As far as his evidence could go to
prove that particular point, it was not receivable at all. It might be im-
portant as to other parts of the case, but it ought to be laid aside upon this
point ; for as far as it went to prove this point, it was as inadmissible as if
he had been directly asked the question.
Patteson, J. — It is much to be regretted in this pase that the evidence of
Tickle is not set out upon the case, for it is difficult to know really what the
question is that the sessions mean to submit to us for our consideration.
We must however take the question to be, whether they were right in ad-
mitting the evidence of Tickle on cross-examination to prove non-access, he
having been called by the other side for another purpose. In this, as in
most other settlement cases, a number of issues was to be tried, and there
can be no doubt that Tickle was competent to prove some of the facts
involved in those several issues, and on his examination in chief he proved
the fact of his having occupied a tenement at Clifton for 25 ye&n ; but then
the respondents go on to cross-examine him as to facts, the result of which
necessarily go to prove non-access. Now the direct question, whether he
had access or not, it is admitted he could not be legally asked. But the
questions which were put to him in cross-examination were directly with the
view to prove non-access. It would, as it appears to me, be trifling to say
that he could not be asked to answer the question in direct terms, and yet
that he might be asked questions which would indirectly but necessarily lead
to the same conclusion. I think that on the direct issue of access, or non-
access, whether raised at the sessions or in Chancery, neither husband nor
wife is to be examined at all.
Williams, J. — Had the rest of the Court been of that opinion, I should
have been for sending the case back to the sessions, that the evidence of
Tickle might have been set out. I shall however assume upon this state-
ment, that the sessions would not have been satisfied as to the fact of non-
TRINITY TERM, 1836.
213
The Kino
V,
Inhabitants of
SOVBTON.
access, except for the evidence given by Tickle; and I shall also assume that King*i Bench.
Tickle was examined as to that point, and with the object of ascertaining
from him the fact of non-access. Then beyond all question he was incom-
petent to give such testimony, as it is a well-established rule of law, that on
the fact of access or non-access, husband and wife cannot be examined.
Then, considering that Tickle, the husband, was in the present case examined
on that point and with that view, and that the determination of the sessions
proceeded upon his evidence, I think that the order of sessions cannot be
supported.
Order quashed.
Doe d. Jones and others and William Davis v.
G. Williams and Richard Herbert,
AT the trial of this ejectment before WiUiamSy J. at the Spring Assizes, The poneMion of
1 835, for the county of Cardigan, it appeared that the premises sought ^^^^^^J^
to be recovered in this action had been mortgaged in fee in 1768, and the ttaudiogth*
lessor of the plaintiff, William Davis, was heir-at-law to the mortgagee, and J^JJ^i,*'^'
the defendant, G. Williams, claimed as heir-at-law of the mortgagor. From advtne to Uie
1808 to 1812, proceedings were had in a suit in the Court of Great Sessions Si^SJ^wh^
in fVales for foreclosing, but no rent or interest was proved to have been at tuch potseuion
any time paid by the mortgagor in possession. It was proved, that in 1814 more dian twratj
an application was made by the mortgagee for payment of the money, when j««».itwa8heid,
George Williams was stated to have offered in conversation to give a bond ledgmentin
for the money, but that offer was not accepted. It was objected at the trial, ^/J?°' ^ ^fj ****
that there having been no payment of interest or rent for the last 20 years, uons wu required
the statute 3 & 4 Will, 4, c. 27 (a), applied to preclude the mortgagee in ^J!^f^J^^^
this case from recovering, and that the supposed acknowledgment by the but tUmt the mort*
offer by Williams to give a bond, did not take the case out of the statute. SIw undCTthe
His Lordship left it to the jury to say whether the money was still unpaid, 15th secUou not-
and directed them in that case to find a verdict for the plaintiff; but said, ^^Maenioii!*' '**
(a) The 2d section of that act enacts,
" That no person shall make an entry or dis-
tress, or bring any action to recover any land
or rent, bat within twenty years next after the
time at which the right to make such entry
or distress, or to bring such action, shall have
first accrued to some person through whom
be claims : or if such right shall not have
accrued to any person through whom he
claims, then within twenty years next after
the time at which the right to make such
entry or distress, or to bring such action,
shall have first accrued, to the person making
or bringing the same."
The 3d section enacts, " That when the
person claiming such land or rent, or the
person through whom he claims, shall have
oecome entitled by reason of any forfeiture or
breach of condition, then such right shall be
deemed to have first accrued when such for-
feiture was incurred or such condition was
broken."
The 14th section declares, '" That when
any acknowledgment of the title of any person
entitled to any land or rent shall have been
given to him or his agent in writing, signed
by the person in possession or in receipt of the
profits of such land," the right by the person
to whom the acknowledgment is given, " to
make an entry or distress, or bring an action
to recover such land or rent, shall be deemed
to have accrued at the time at which such
acknowledgment, or the last of such acknow-
ledgments, if more than one, vras given."
'i'he 15th section provides, " That when no
such acknowledgment as aforesaid shall have
been given before the passing of this act, and
the possession or receipt of the profits of the
land, or the receipt of the rent, shall not at the
time of the passing of this act have been
adverse to the right or title of the person
claiming to be entitled thereto, then such
person, or the person claiming through him,
may, notwithstanding the period of twentv
years hereinbefore limited shall have expirad,
make an entry or distress, or bring an action
to recover sucn land or interest at any time
within five years next after the ptsiing of thia
act."
214
TERM REPORTS in the KING'S BENCH.
Dos
d.
Jowfis
and others
V.
Williams
and another.
King*8 Bench, that if they thought the money had been paid and the estate re-conveyed,
they roust find a verdict for the defendants. The jury found a verdict for
the plaintiffs, finding that there had been no payment of any rent or interest
for the last twenty years. A rule had been obtained calling on the lessors
of the plaintiff to show cause why a nonsuit should not be entered, upon the
ground of the objections taken at the trial, or why a verdict should not be
entered for the defendant Herbert, on the ground that he could not be
affected by an acknowledgment made by fVilliams alone, and not in his
presence or by his authority.
«/. Evans, and V, Williams, showed cause. — The parol acknowledgment
is in this case sufficient to take the case out of the statute. What the law
was upon this point before the statute will be found by reference to Hall v.
Doe d. Surtees (a). In that case premises were mortgaged in fee, with a
proviso for re-conveyance if the principal was not paid on a given day, and
in the meantime the mortgagor was to continue in possession. A special
verdict found that the principal was not paid, but that the mortgagor did
continue in possession. It was held that this possession was by the per-
mission of the mortgagee, that it was not adverse, and that, though more
than twenty years had elapsed since default in payment, the mortgagee was
not barred by the Statute of Limitations. The question of the subsistence
of the mortgage is there spoken of by Lord Tenterden as one for the consi-
deration of the jury. The circumstances here were left to the jury, and
were sufficient for them to draw the conclusion that the mortgage was not
satisfied. Before the recent statute, it is quite clear that the lessor of the
plaintiff would have been entitled to recover. What difference is made in
the case by the new statute? None whatever in this respect, for if the jury
thought that the mortgage money was not paid, length of possession would
not affect the question, for then the possession would not be adverse ; and
unless it was adverse at the time of the passing of this act, according to the
provisions of the 15th section, the plaintiffs are entitled to recover. The
mortgagee is the bailiff of the mortgagor, and the possession of the former is
not adverse to the title of the latter. The plaintiffs, therefore, had five
years afler the passing of the act to bring the action, and it has been brought
in time. As to the objection, that the acknowledgment, if good with regard
to Williams, will not affect Herbert, the answer is, that they defend on the
same possession by the same attorney, and that the consent ride shows that
they stand in the relation of landlord and tenant. The acknowledgment of
the landlord, IVUliams, must bind the tenant, Herbert,
Wilson and Chilton, in support of the rule. — It is clear that at least the
defendant Herbert is entitled to have a verdict entered for him ; he made no
acknowledgment whatever, and the consent rule does not show that he is
tenant to Williams, It does not show which of the two men is landlord and
which tenant. The mortgage was in 1768, and there is no proof of payment
of interest, nor any that the possession of the person through whom the
defendants claim was a possession under the deed. The only thing in favour
of the plaintiff is a conversation repeated by two women, who were digging
(a) 5 Barn. &c Aid. 687.
TRINITY TERM, 1836.
215
Doe
d.
Jones
and others
V.
WlLIIAMS
and another.
potatoes, and who spoke to having heard an offer by WUliams to substitute King't Bmch.
a bond for the mortgage. That offer can only affect frtT/iom^; but with
regard to liim, the case must be decided on the construction of the 2 & 3
Will, 4, c. 27. Under the second section of that act, the first question will
be, at what period did the title of the mortgagee accrue. If at all, it must
have been upon the day of the execution of the instrument of mortgage, or
when the money became due and was not paid, and the estate thereby
became forfeited. There was a distinct finding of the jury, that there had
been no payment of rent nor interest for above twenty years, yet the mort-
gagor held possession. That possession was therefore adverse during the
whole of that period. The other party was bound to show that it was not
adverse, in order to bring himself within the 15th section. The plaintiff can-
not recover the money secured by the mortgage in any action at law, for the
40th section of the act prohibits such action after the lapse of twenty years.
Nor can he by the 24th section bring any suit in equity to recover the land
afler the lapse of that period. And yet if he is allowed to succeed in this
action, he will be enabled to do indirectly what the statute has refused him
permission to do directly, for after this ejectment he may file his bill in
equity for a foreclosure. — [^Patteson, J. — If the legislature meant that an
ejectment must be brought within twenty years after the last payment of
interest, why not say so ?] — It has said so; it was so decided in James v.
Sailer {a) f where an annuity granted by will was held exempted from the
operation of the statute, solely because a will was a case excepted under its
provisions.
Lord Denman, C. J. — This ejectment is taken to be barred by the effect
of the 2d and Sd sections of the d & 4 IVilL 4, c. 27. In the 14th section
of the act is contained a proviso, which runs through that and all the inter-
vening clauses, requiring an acknowledgment in writing to take the case out
of the statute. The 15th section follows, and provides, that where no such
written acknowledgment shall have been given, and the possession is not
adverse at the time of passing the act, a person having a right of entry shall
be enabled to bring his action within five years of the passing of the act. In
order, therefore, to bring the case within the enactment which makes it
necessary that there should be some written acknowledgment, it is requisite
to show that the possession was adverse at the time of the passing of the
act ; and it has been contended on the part of the defendant, that the pos-
session in this case was adverse, because more than twenty years have elapsed
since the last payment of any interest. But it appears to me that that con-
sequence does not follow, for when we see that as a general rule the pos-
session of the mortgagor is consistent with the title of the mortgagee, I do
not find in answer to that general rule any proof that in feet the possession
in this case was an adverse possession at any particular period. The non-
payment of interest will not alone make it an adverse possession. It is not
necessary, therefore, that any written acknowledgment should be proved in
this case, though more than twenty years have elapsed since the execution of
the instrument under which the plaintiff claims possession.
LiTTLEDALE, J.-^It appears to roe that the statute 3 & 4 JVilL 4, c. 27,
(a) 1 Hodges, 405; 2 Bing. N. C. 505; 2 Scott, 750.
216
TERM REPORTS in the KING'S BENCH.
Doe
d.
Jones
and others
V,
'Williams
and aDother.
iiTtfi^'f Bench, will not prevent the lessor of the plaintiff from recovering in this ejectment.
By the 15th section, when no such written acknowledgment as is required
by the statute has been given, and the possession at the time of passing the
act has not been adverse, a party claiming has five years after the passing
of the act within which to bring his action. This seems to me to leave this
case in precisely the same situation as it would have been in had the ques-
tion arisen before the statute was passed. Proof is given of an acknowledg-
ment by the heir of the mortgagor that the mortgage money is still due.
This then is a distinct recognition of the right of the mortgagee, which
shows the possession not to have been adverse. As this action therefore
was brought within the five years, and the possession was not adverse at the
time of the passing of the act 3 & 4 fTtlL 4, the effect of the 15 th section is
to reserve to the lessors of the plaintiff the right to maintain this action.
The 40th section has nothing to do with the case. This is an action to
recover the land, not the money.
Patteson, J. — The 15th section enacts, that when no such acknowledg-
ment as is required by the previous section shall have been given before the
passing of this act, and the possession or receipt of the profit of the land, or
the receipt of the rent, shall not at the time of the passing of the act have
been adverse to the right or title of the person claiming to be entitled
thereto, such person may, notwithstanding the period of twenty years shall
have expired, bring an action. It plainly appears from this section, that
something hereafter was to be considered adverse which at the time of
passing the act was not so considered, and that something is the being in
possession for twenty years without payment of rent or interest. Then, in
considering the present question, we have to see what the law was with
regard to adverse possession at the time when the act passed. It is clear,
that as mortgagor and mortgagee, the parties stood in a relation to each
other which made the possession of the one not adverse to the right of the
other. I do not understand how that relation has been described. Some-
times it was said to be a tenancy at will^ sometimes that the mortgagor was
tenant at sufferance to the mortgagee, and at others, that he was bailiff; and
in the last case on the subject, Lord Tenterden said that he was not able to
state what it was ; but, at all events, it is perfectly clear that the possession
of the mortgagor is not adverse to the right of the mortgagee. If a written
acknowledgment of the right of the mortgagee be given, the action must be
brought within twenty years of the date of that instrument ; but no such
acknowledgment having been given in this case, still, however, the pos-
session not being adverse, the lessor of the plaintiff had five years from the
time of passing the act within which to bring his action. As to the meaning
of the Sd section, as to the right of the mortgagee upon the forfeiture, I
cannot clearly see my way through it ; and with respect to the 40th, it is
about one of the worst drawn and most confused section that I have ever
perused ; but it does not appear to me to be applicable to the present case.
Williams, J. — I am of the same opinion upon the construction of the 15th
section.
Rule discharged.
TRINITY TERM, 1836.
The King v. The Inhabitants of Aslackby.
n^HE Sessions quashed an order for the removal of Elizabeth Hanson and a te»tator por-
her two children from the parish of Aslackby to the parish of Pointan, parish or a. and
subject to the opinion of the Court on the following mortgaged it. and
>» r o by will devised It
to trnstees in
C A S £ • trust for snle, and
William Hanson^ the late husband of the pauper, rented a public-house ceedTio parent
and two acres of land in the parish oi Pointon, at the annual rent of 28/., for ®/**** debu.aud
,.j I'll 1 ' nM t \ % the residue to hw
four years previous to his decease, which happened in May^ 1830, and he wife for her own
also rented during the same time five acres of land in the said parish of 2^ia*°*n^d ""
Pomton, at the yearly rent of 10/. 13«., which rents, as they became due, he this deme the
paid up to the time of his decease. In 1825, the said William Hanson pur- Twe ^uJ^iruIl"
chased of Theophilus Russell Buckworth, Esq. several closes of land in ^^^ iueif such as
Aslackby for 670/., in consideration of which sum, by indentures of lease and to aseiUemeni I
release, dated respectively the 10th and 11th days of /antiar^, 1828, the said tiiat actual resi-
closes of land were duly conveyed to the use of him the said William Hanson lueifwasnotne-
for life, with a remainder to a trustee during his life to prevent dower, re- f*"*''?' resWe»»c«
mainder to the said William Hanson in fee; and immediately upon the con- b«ing sufficient:
veyance of the same, the said William Hanson granted a mortgage thereof to ***"***" /^^^'..-j
Mr. Benjamin Smith for 450/., and the said William Hanson died seised of by the trustees
the said lands in Aslackby, the said mortgage debt, with a considerable oMwldiriili''**
arrear of interest, being still a charge thereon. session by uiem
" By will dated the 24th May, 1830, and legally executed for passing real [fHJ^videDce «
estates, the said William Hanson devised all his real and personal estates to to the value of
Thomas Caswell and Joseph WUkinsoti, both large charge bearers and residents view" proiing' *
in Aslackby, in trust for sale, and to apply the proceeds therefrom in pay- ^'^ ^^^^ ^o»»w
^ i» I • 1 » 1 • 1 • 1 , *. be uo residue after
ment of his debts due on mortgage or specialty or simple contract at the time payment of the
of his decease, and the interest of such debts as should carry interest, and de^^*. ^^ i»n»a.
also his funeral and testamentary expenses, and the residue to his wife, uon being what
(the pauper) to and for her own use and benefit :** to which words he added, ***^^ "'* ^l**
' , ' . took under the
*' And I give and bequeath the same monies and premises accordingly.'* And will, and not what
he appointed the said Thomas Caswell and Joseph Wilkinson his executors. JJIf/^^T^'"* **^
The testator died very soon after the date of his will, which was duly proved by
the executors. Since the testator's death, the trustees and executors have
possessed themselves of all his personal estate, consisting of all his household
goods and furniture, cows, horses, waggons, and stock in trade, and have
occupied all his real estate, but have rendered no account of any sort to his
widow, who with her children has been residing with her father in the said
parish of Aslackby, Upwards of a year after her husband's deaths and
whilst so resident in the said parish of Aslackby, Caswell, the trustee, on her
application for assistance, paid to her 305. by two payments on account.
The respondents called Mr. Benjamin Wilkinson, the attorney for the
trustees, who proved that the estate had been put up for sale, but that no
offer had been made for it, and that there was a large arrear of interest
which had accrued due since the decease of the testator, and that the trustees
would be glad to sell the estate for the amount of principal and interest.
The respondent's attorney then called Caswell the trustee, who being sworn.
218 TERM REPORTS in the KING'S BENCH.
King*s Bench, ^^ asked as to tlie solvency of the testator's real and personal estates, but
v^^/^ the attorney for the appellants objected to the evidence, on the ground that
The Kino the Court of Quarter Sessions was not the proper tribunal for such an
Inhabitants of >"<lu^iT> ^^^ ^^^^ ^^ ^^^ pauper, who was alone interested in that inquiry,
AsLACKBY. was admitted never to have been apprized of the state of the husband's
affairs, or had particulars or account thereof rendered to her, the Court
could not enter upon the subject, either of the accounts or present value of
the estate which still remains unsold and in the occupation of the trustees,
as these were subjects to be adjusted either by the parties themselves or by
the Court of Chancery. The Court of Quarter Sessions concurred in this
objection, and quashed the order, subject to the opinion of this Court, under
the foregoing circumstances, on the admissibility of the evidence, and as to
whether the pauper took under the will a sufficient estate to confer a settle-
ment, no adjustment of the said pauper's affairs having in the course of four
years been brought to any conclusion.
Amos, in support of the order of sessions. — The mortgage here is out of
the question. A devise of the residue confers a legal estate by which the
devisee gains a settlement. Such a devise, after payment of debts, amounts
not merely to a pecuniary bequest, but to a devise of an interest in land ;
Rifpery. Radcltff'e{a), The principle there laid down was afterwards ex-
pressly applied to settlement law in Rex v. WiveUngham (6) ; and in Rex v.
Edington (c), this Court held, that an equitable estate in the wife, where she
had always continued in possession, passed to a second husband, and that he
and his wife, by residing on the premises for more than forty days, gained a
settlement. — [Patteson, J. — There is a recent decision of the present Lord
Chancellor, as to what shall be deemed an interest in land, reported in the
Law Journal,'] — The interest here is clearly an interest amounting to an
equitable estate, so as to entitle the party to be considered as having an
estate in the parish.
N. R, Clarke and Bourne, conird. — The most recent decisions have esta-
blished that no equitable interest, unless amounting to an equitable estate,
would confer a settlement. This is not an equitable estate. The estate
here is devised to trustees, who are to pay debts, and if there is any thing
left, they are to pay it over to the pauper. This case most resembles that
of Rex V. Geddington{d), where a written agreement was made for the
purchase of an estate, to be paid for by two instalments, the purchaser to be
let into possession on payment of the first. He was so let into possession,
and so continued for a year and a half, but never paid the second instal-
ment, and the contract was aflerwards given up, the pauper receiving
back part of the instalment which had been paid. It was held, that under
this contract the purchaser did not acquire an equitable estate so as to
gain a settlement under the 9 Geo, 1, c. 7, s. 5. — [^Littledale, J. — But the
purchaser there, and the widow here, are in a different situation ; the pro-
perty belongs to her, though the debts charged upon it must be first paid.
She has an interest in the whole, and for any thing that appears in this case,
the personal estate might be sufficient to pay off the mortgage and the debts.]
But until tlie debts were paid she could not go into a Court of Equity
(a) 9 Mod. 167, 181 ; 2 P. Wms. 6. (c) 1 East, 288.
(6) Dong. 767. {d) 2 Barn. & Cress 129.
TRINITY TERM, 1836. 219
to compel a conveyance. — [^LittledaU^ J. — A Court of Equity would first Kingt Bench.
direct an account of the personal estate, and if that was sufficient, the s^/^
trustees could not come upon the land at all. — Patteson, J. — The cases in The Kino
Chancery are decisive with respect to the nature of interests of this sort, inhabitants of
Suppose that this party had died in the lifetime of the testator, the residue Aslackby.
would have gone to the heir at law and not to the next of kin.] — But the
party roust have a clear equitable estate, such as would make a CoUrt of Equity
put her into possession of the land, and that was not proved to be the case
here, for the sessions refused to hear evidence to show whether there would
be any surplus. If there was no surplus all the land was gone. The case of
Rex v. Geddington has been confirmed by that of Rex v. fyoolptt (a). la
Rex V. Berkswtll (6), the pauper had an equitable interest in the property,*
upon which she and her husband resided for some years, but that was held
not to be sufficient to confer a settlement. The principle on which a party
gains a settlement by estate is, that he is not removeable ; but how can he
be said not to be removeable from a place where he has no right to reside ?
Rex V. Cregrina (c) shows that the party must have such an interest as would
entitle him as of right to reside on the property. In all the cases cited on
the other side the party had so resided. — [Pattesony J. — But that was not
the case in Rex v. Darlington (d ).] — And in that case it was held that no
settlement was gained. (Mr. j4mos suggested that in Rex v. Houghton Le
Spring (f), the residence of the pauper was not a residence as of right, and
yet the settlement was gained.) But there the pauper had more than a mere
equitable interest, which might never be converted into possession. He had
a freehold property in possession, and any residence on that would be suffi-
cient. That case, therefore, does not resemble the present. Rex v, Berks^
well is the case which is most like the case now before the Court, and by
which it must be decided. (The arguments in the case have been confined
to the only ground on which the judgment of the Court proceeded.)
LiTTLEDALE, J. (/). — It appears to me that the widow had in this case an
estate sufficient to confer a settlement. The husband being in debt to a
considerable amount, devises all his real and personal estate to trustees in
trust for sale, and to apply the proceeds therefrom in payment of his debts,
and the residue to his widow, to and for her own use and benefit. It appears
that the estate in question was mortgaged, and that the mortgage debt, with
a considerable arrear of interest, was still a charge upon the estate ; and it
also appears that the trustees would be glad to sell the estate for the amount
of principal and interest, but until the trustees have sold, what is the situation
of the parties ? The trustees have possessed themselves of the household
goods and furniture, cows, horses, waggons, and stock in trade, and non
constat but that these goods may be of sufficient value to discharge all the
testator's debts, and the widow will then have an equitable estate in the
residue. As to the residue, it seems to me that she has such an equitable
estate in it that her right to it might be enforced. But then it has been
urged that the widow did not reside upon the estate ; that is true : but she
(a) 4 Dowl. & Ryl. 456. («) 1 East, 247.
(6) 1 Barn. & Cress. 542. (/) Lord Denman, C. J. had left the
(c) 1 Har. & Wol. 53 ; 2 Ad. & £1. 536. Court
{d) 5 Maule & Scl. 493.
220 TERM REPORTS in the KING'S BENCH.
King'i Bench, did reside in the parish, and she could not reside upon the estate because
^•^v^^ the trustees were in the occupation of the estate ; but they were not holding
The Kino adversely to the widow, for they are her trustees, and they may be com-
Inhabitants of pelled to account for all the money they receive in respect of the estate, so
AsLAcuY. that it is the same as if she resided there herself. It is said by Mr. Clarke^
that the widow would have no right to go into a Court of Equity to
compel a conveyance to her of the estate, until the debts were paid, or a
sufiicient sum tendered for that purpose. 'Perhaps not ; no doubt that is
so : but she might get a sufficient sum elsewhere to enable her to make such
an application, and until the sale of the realty has been effected, it is impos-
sible to say that she may not have the means of preventing it. What the
trustees here have is a power to pay off* all debts, and to sell the realty to
enable them to do so, but, subject to that power, the equitable estate in the
residue is vested in the widow. Most of the cases cited by Mr. Clarke have
been cases of purchase, which are entirely upon a different footing, and the
only case which bears on the present is The King v. Berkswell. I'here a
lease of a cottage had been granted for thirty years to one Hands^ who
having resided in it for above a year, died, leaving a widow and three
daughters ; administration was granted to the widow, but no distribution of
the estate was made. After the death of Hands^ the widow, and by her per-
mission, one of the daughters, with her husband, the pauper, resided in it
some years. Lord Tenierden (then Mr. Justice Abbott) said, *' I am clearly
of opinion that the pauper had not any such interest as would have enabled
him to say, I will come and reside on this property. If the widow of Hands
had refused to let him do so, a Court of Equity would not have assisted him.
The next of kin had not even an equitable interest, but had a mere right to
an account." The pauper, therefore, in that case had not any interest at all,
he only had a right to have an account ; but the widow here has an interest
in the whole property, which at any time before sale might be converted into
an estate. I consider her as having an equitable estate. With regard to
the other question raised upon the case as to the examination of witnesses,
the evidence was perfectly immaterial, the widow having the right which she
has of going into a Court of Equity.
Patteson, J. — The question here arises upon the will of a mortgagor in
possession. By his will he devised the equity of redemption to trustees for
the payment of his debts, and the residue to his wife for her own use and
benefit. The question is, whether she takes any equitable estate at all, for
the value of the estate is immaterial ; and whether, under the 9 Geo. 1, she
has thereby gained a settlement. Roper v. Radcliffe and The King v. Wive^
lingham are in point. The latter perhaps not precisely so, because it ap-
peared there that there was a surplus of personal property after payment of
debts ; but provided the widow here could pay all the debts, she would be
precisely in the same situation as the party was in that case, for she has an
equitable interest in the estate itself. But it is said that the estate is not
sufficient to answer the debts of the testator. Whether it is so or not is not
the question here ; but the question is, what estate did the widow take under
the will. One circumstance relied upon in this case is, that the widow had
not a right to reside on the premises. I do not know whether she had or
not, for the trust is not to receive the rents and profits and pay them to her.
TRINITY TERM, 1836. 221
but to sell the estate to pay the debts. But it is found in the case that the King't Bench.
trustees were in fact occupying as trustees ; that the relation of trustee and h^^v-**
cestui que trust existed between them and her, which is a very material cir- The Kino
cumstance. The case of The King v. Geddington was a case of purchasers, jni^jjbiianu of
and Holroyd, J,, observing upon the relationship of the trustee and cestui que A«lackby.
trusty says, " If you show that the vendor and vendee stood merely in the
relation of trustee and cestui que trusty then the l&tter would have an equitable
estate and gain a settlement." These parties come within the latter descrip-
tion, and that makes the difference between the two cases, for there the
party was a purchaser, and did not stand in the situation of a cestui que trust.
Under these circumstances, it appears to me that there was a clear equitable
estate in the pauper, and the only remaining question is, whether it is proper
to go into the inquiry as to how far the proceeds on the sale of the estate
would be sufficient to discharge the incumbrances upon it: as I have
already said it does not appear to me proper to go into that inquiry. The
King V. Darlington (a) differs from this case in many respects, and there no
point was ever raised upon the question whether the pauper must reside on
the property ; a residence in the parish was assumed to be sufficient ; but
the Court held that the will must be construed not to give the pauper an
equitable estate, for if he had taken any such interest the intention of the
testator would have been defeated, because whatever he took, he being an
uncertificated bankrupt, would have passed to his assignees.
Williams, J. — It is too late now to raise the question, whether a person
having an equitable estate can gain a settlement. That has long ago been
decided in the affirmaiive.and the only question is, whether in this instance
the widow took an equitable estate under the will. It has been objected,
that if the estate were sold, and the debts paid off*, there would be no
residue. But the question is not how affairs may turn out upon inquiry and
investigation into them, but what estate does the party take under the will ?
The devisees here are mere trustees on behalf of the pauper, and she is the
person who, in the event of there being any surplus, would be entitled to it.
It is clear from the authorities that the devisee of the residue, after payment
of debts, may go into a Court of Equity, and at his option pay the debts
and have the land ; until sale, therefore, he has an equitable estate in the
land itself. The evidence offered then as to the value of the estate and the
amount of the debts was immaterial. It appears to me that she was entitled
to an equitable estate, and resided in the parish so as to gain a settlement.
With respect to residence, a party, to gain a settlement by estate, need not
reside on the property itself; residing in the same parish is sufficient.
Here too the trustees were in fact residing on the property. They were not
occupying adversely to the pauper, but as trustees for her. Every thing,
therefore, which is necessary to gain a settlement, is found in this case.
Order of Sessions confirmed,
(a) 5 Maule & Sel. 493.
A
222 TERM REPORTS in the KING'S BENCH.
King*8 Bench,
The King v. The Justices of Middlesex.
A party WAS con* IN this case otie Richard Nosh had been convicted before two justices,
magi»trJiM'undiT Under 17 Gco, S, c. 56^ for purloining and embezzling certain silk tnanu-
diei7C«o.3,c.56, factures entrusted to him b/a master-weaver to prepare and work up for
•ppeSrbutdidnot ^i™» ^c. ; and the conviction set forth that " the said Richard Nash is, for
enter into recog- hig said first otifence, adjudged by us to be committed, to the House of Cor-
cute the appeal vection at Cold Bath Fields^ in the said county, for the space of eleven weeks,
and abide the ^hg^g j^ ^e kept to hard labour."
Judgment^ and was .
therefore commit. A Warrant of Commitment, reciting the conviction, was made out, but in
**^ J^*" T""' "' . conclusion it stated, " but the said Richard Nash havinsr ffiven to us notice
eutenng into such , . , ...
recognisances. in Writing, ofhis intention to appeal at the next general quarter sessions of
•nrtved^he*did*not *^® P^ace to be holden in and for the said county of Middlesex, against our
proceed with the said conviction, but not having entered into recognizances with sufficient
^oMcutor did*iiot sureties at the time of giving such notice, pursuant to the statute in that case
move to affirm the made and provided, him therefore safely keep in your said custody, until the
tiie end of the se«. Said next general sessions of the peace (unless such recognizance shall be
sious he was dis- sooucr entered into) or until he shall be discharged by due course of law, and
charge^d, the com- . , . , . , i, , /« • tt
mitment for want lor SO domg this shall be your sutncient warrant.
c^ entering into Nash did not enter into the required recognizances, he was imprisoned, and
cognisances being at the end of the scssious was discharged from custody under the commitment,
jHwIhaft^ia ^^^ ^SLtit of entering into these recognizances. A certificate having been ob-
Coart would not tained from the clerk of the peace, that no appeal had been entered at the
to^iVconvictiM ^^^^ general sessions, application was made to the convicting magistrates to
magistrates to is- issuc their Warrant of commitment on their conviction. They refused to do
against 'the de-** B^* ^^^ ^ ^"^^ ^^^ ^^^" obtained. Calling on them to show cause why there
feudant upon the should uot be a mandamus commanding to issue their warrant for the appre-
ing at best doubt- hcnsion and commitment of Richard Nash, pursuant to the conviction made
fui whether, under fey them undcF the Statute 17 Geo. 3, e.-bQ.
these circuro- mi i • /• i • • i •
sunces. uieirju- Ihe 20th scction of tbis Statute gives a power to appeal agamst any con-
risdiction was not yjction of majiistrates for offences within the Act, in the followins terms : —
altogether at an i i • i
end. ** And the justices are hereby required to make known to such person, at the
wh«i*tu"defeiid- ^^^ ^^ *"^^ couviction, his or her right to appeal at the next general or ge-
ant did not pro- ncral quarter sessions of the peace^ to be holden for the county, riding, divi-
peal, the prosecu^ ^^^^* ^*^y» liberty, town, or place, where such conviction shall have been made,
tor ought to have such pcrsons, at the time of such conviction, giving to such justices notice in
sions to affirm the Writing of his or her intention to appeal, and also entering into a recognizance
convicuon. ^t the time of such notice, with sufficient sureties conditioned to try such
appeal, and to abide the judgment of and pay such costs as shall be awarded
by the justices at such sessions; but if the person giving such notice' of
appeal shall not, at the time of giving such notice, enter into recognizances as
aforesaid, then the justices to whom such notice of appeal shall have been
given, shall and may commit such person or persons to the house of correc-
tion or other prison of such county, riding, division, city, liberty, town, or
place, there to remain until the said next general or general quarter sessions
of the peace to be holden in and for such place, unless such recognizances
shall be sooner entered into, and which recognizances the said justices before
whom such conviction shall have been made, or any other two or more jus-
TRINITY TERM, 1836. 223
tices of the same county, riding, division, city, liberty, town, or place, are King's Bench.
hereby empowered and required to take ; and the justices at such sessions are >^v^
hereby authorized and required, upon due proof made of such notice of ^^® ^'''^
appeal, either by acknowledgment of the justices to whom the same shall The Justices of
have been given or otherwise, to hear and determine the matter of the said Middlebcx.
appeal, and to award such costs as to them shall appear just and reasonable
to be paid by either party ; and if, upon the hearing of such appeal, the judg-
ment of the justices before whom the appellant shall have been convicted,
shall be affirmed, such appellant shall, within forty-eight hours next after the
same shall be so affirmed, suffer such corporal punishment as shall have been
directed to be inflicted upon him or her for tlie ofience whereof he or she
shall have been convicted, or shall immediately pay the sum which he or she
shall have been adjudged to forfeit, together with such costs as the justices in
the said sessions shall award to be paid by him or her, for defraying the
expenses sustained by the defendant or defendants in such appeal, or in de-
fault of making such payments, shall be committed to the common gaol or
house of correction, in the same manner and for the same time, to be com-
puted from the affirmance of such conviction, as shall be directed by the ori-
ginal judgment of conviction, unless the person or persons so convicted shall
have been imprisoned under the original conviction, in which case the time
for which such person or persons shall have been so confined, shall be included ^
in the order of confirmation."
Barsiow showed cause. — The justices here have done all that they are em-
powered to do. They have no authority to issue a fresh warrant. The party
has already been imprisoned, and has been properly discharged., — [Littledale,
J. — He has not been in custody in execution of the sentence, but only for
safe custody.] — The sessions have obtained jurisdiction over the case, and
the prosecutor was bound to come and sustain his charge. If he did not come
in time, the man was entitled to his discharge. If the sessions had jurisdic-
tion, he has been rightly discharged by their order — if they had not jurisdic-
tion, they had no power to detain him in custody. The notice of appeal
brought the conviction before them — Nash, the party appealing, was in cus-
tody because he could not give recognizances — he was prepared to try the
appeal — the prosecutor did not come to support the conviction, and Nash was
therefore entitled to his discharge, and cannot now be again taken into cus-
tody upon a conviction which the prosecutor did not appear to sustain at the
sessions. It is not clearly made out to be the duty of the magistrates to
issue their warrant, and this Court will not compel them by mandamus to
exercise an authority, when it is doubtful whether they legally possess it.
Kelly, in support of the rule. — The punishment for the offence of which
Nash was convicted, was in the discretion of the magistrates. They adjudged
that he should be imprisoned for eleven weeks, and be kept to hard labour.
Their next duty would have been to make out the warrant of commitment
for eleven weeks ; but under the 20th section of the statute, the party ap-
pealed. He did not, however, enter into the recognizances required by the
statute, and the magistrates tlierefore committed him for want of entering
into such recognizances, and for no other cause. When the next quarter
sessions arrived, it became the duty of the appellant to take certain steps^
224 TERM REPORTS in the KING'S BENCH.
King*8 Bench, and Without such steps being taken, the sessions could do nothing in the inat-
^*^^^<^ ter. The practice of the Middlesex Sessions is stated in the affidavits to be
this. The appellant files, within one or two days of the sessions, a petition of
The Justices of appeal, and obtains thereon an order for hearing the same on the appeal day ;
Middlesex, a copy of which conviction and order is by appointment served on the con-
victing justices. Nothing of this sort was done here, but that is the default
of the party appealing, and he cannot be allowed to take advantage of his
own default. — [^Littledalef J , — If the defendant takes no further notice of the
matter, cannot the prosecutor move the affirmance of the judgment, as in the
Exchequer Chamber ?] — There would be no necessity for recognizances on the
part of the appellant to appear and try the appeal, if that could be done. —
[Littledale, J. — Is not his imprisonment for want of entering into recogni-
zances, the same thing as entering into them — then what is the consequence
of his afterwards abandoning the appeal ? — Patteson^ J. — The real difficulty
is, that the statute has not contemplated that he will not follow up the ap-
peal.]—That is the difficulty, and the term of his imprisonment under the
commitment for want of recognizances having expired, the sessions had no
right further to imprison him. The case therefore stands now exactly as it
did before he gave notice of appeal, and he may be committed on the war-
rant upon the conviction. The conviction and the commitment are two dif-
9 ferent things, and the appeal having interposed between the one and the
other, and that now being at an end, the convicting justices have the right to
make out the commitment upon the conviction. — IPattesorii J. — Then how
is the allowance to be made as directed by the statute, for the time the party
has been imprisoned under the conviction ?] — He never was imprisoned under
the conviction — but only for want of entering into recognizances — he has
never been put to hard labour, but has merely been kept in safe custody.
He has therefore suffered no imprisonment which can be taken into account.
Lord Denman, C. J. — Here is a person duly convicted of the offence of
purloining and embezzling silk — an offence for which he might have been
committed to prison for three months, and sentenced to hard labour. But
when he was convicted, he gave notice of appealing against the conviction.
He was required to enter into recognizances to appear and prosecute the ap-
peal, which, however, he did not do. He was for that reason committed to
prison. When the time came he did not act upon the notice of appeal, no
other proceeding was taken, and at the expiration of the sessions he was dis-
charged from custody. We are now called upon to direct a mandamus to the
convicting justices, commanding them to issue their warrant to apprehend
and imprison him under the original conviction. We must see clearly that
the justices are bound to do what we are now asked to order them to do,
before we issue aay such order. It is doubtful to me, whether they have the
power to apprehend this person. The imprisonment for want of recogni-
zances may be considered, in some sense, as part of the execution of the
sentence, as the justices have the power to consider it in that light. The only
thing that the justices could possibly do under the circumstances of the case,
would be to say, that the original sentence should stand ; and the question
then is, whether they can give effect to such declaration by recommitting the
defendant for the time ibr which he was originally committed. But it seems
to me at best doubtful, whether the justices can do any thing of that kind.
TRINITY TERM, 1836. 226
I think that they have done all that they have the power to do, and that their King's Bench.
authority in this matter is now at an end ; and that they would not have the v^s^^
power to act as is now wished, even if we were to direct them so to do. It ^**° ^^^^
is clear, then, that we ought not to direct them to do that which they have no j^e Justices of
legal power to do, and the rule for the mandamus must therefore be discharged. Midoleskx.
LiTTLEDALE, J. — I am entirely of the same opinion. I think it doubtful
whether the justices have the power to act in the way now desired, and we
certainly cannot grant a mandamus to compel them to do that which would
subject them to actions for false imprisonment. The conviction should have
been brought before the sessions and afHrmed— if it was not affirmed, the
justices had not the power to detain the party beyond the end of the ses-
sions, for he was only detained for not entering into recognizances. After
this I question very much whether the justices can again commit him, and
especially in his absence. It is the practice in this Court not to commit a man
unless he is present in Court, and there is a special statute authorizing the
judges of assize to make such a commitment, otherwise they could not do it.
The whole case is so doubtful, that I think we cannot grant the mandamus*
Patteson, J. — So far as the statute is concerned, this is a casus omissus.
Nothing can be done without the conviction has been confirmed. The statute
at first contemplates that the magistrates before whom the man is brought,
shall put the sentence into a course of execution. If he appeals, he is re-
quired to enter into recognizances, and if he does so, they have nothing fur-
ther to do with the matter ; but if he does not, they may commit him for
want of entering into recognizances, and that committal may afterwards, in
the event of the sentence being confirmed, be taken into consideration as part
of the punishment. But all this is only in case there is a confirmation of the
sentence by the sessions, and the statute omits altogether what is to be done
in case the party does not proceed with the appeal, and in case the sessions
do not pronounce judgment upon it. It seems to me that applying to the
sessions to confirm the sentence was, in this case, the only mode in which the
prosecutor could cure this defect in the statute, and that course he has not
thought fit to pursue. The authority of the justices to proceed further is at
best doubtful under such circumstances, and I am therefore of opinion that
this rule for a mandamus cannot be supported.
Williams, J. concurred. Rule discharged.
Rex v. John Wilson.
IN this case the defendant had been convicted under the 8 Hen, 6, c. 9, upon wher« a conric-
the complamt of two persons named Bates and Styles^ of a forcible de- 6, c o, for a for^
tainer. The conviction was removed into this Court by certiorari^ and afler J^n**^hed fJl^
argument the Court gave judgment to quash the conviction, and the inquisi- wautofi«ny»ute.
tion which had been founded upon it (a). Afler the judgment had been deli- JJJ M^r^ihe't^
qaisltlon takeo
(a) See ante, 1 Harr. & WoU. 387. opoo such convk>
tkm nnst also be
quashed.
Tlie maKtstratm acting ander the statute haviug airarded restitution of the premiMS, this Coart, on
quashiug the conviction and inquisition, is bound to award re-restitution*
VOL. II. 9
228 TERM REPORTS in the KING'S BENCH.
ICtn^'f Bench, vered, it was discovered that the rule had applied in terms to the conviction
^•^v^^ only, and therefore the rule absolute was so drawn up, and the effect of the
The Kino judgment of the Court was limited to quashing the conviction.
V,
John Wilson.
M, D, Hill obtained, in Michaelmas Term last, a rule calling on the pro-
secutors to show cause why the inquisition should not be quashed, and a writ
of re-restitution awarded. From the affidavits filed on this and the previous
rule, it appeared that Wilson claimed the premises as heir-at-law of the last
possessor, and Bates and Styles claimed them under a will. On the 28th of
August, 1 832, they entered during WilsotCs absence, claiming to take posses-
sion ; but on his return they were induced to depart, it being agreed that a
meeting should be held for a settlement of the dispute. On the drd of Sept,
an information for a forcible detainer was exhibited against Wilson^ by Bates
and Styles, Wilson voluntarily attended before the justices at the Town
Hall at Market-Harboroughf on this information, and the matter was dis-
cussed before Messrs. Griffin and Brooke^ the justices then sitting, who heard
the complaint and heard witnesses examined in support of it, but who declared
that the then proceeding was ex parte, and therefore refused to allow Wilson's
attorney to cross-examine these witnesses, or produce witnesses on Wilson's
behalf. The magistrates afterwards proceeded to the dwelling-house, part of
the premises in dispute, where Wilson's wife and family then resided, but from
which Wilson was at that time absent. The clerk of the attorney for Boies
and Styles accompanied them. The door was fastened, but the wife opened
it afler a threat had been used that it should be forced. Wilson came upon
the premises after the magistrates had entered, and upon his saying that he
would not give up the premises unless compelled by law, the magistrates
ordered a constable to apprehend him. He then served one of them with
the following notice — ** I do hereby give you notice not to trespass upon
the premises in Market-Harborough now in my occupation ; and further, as
I understand you as a magistrate, with your assistants, intend to enter upon
the same premises and dispossess me thereof, that I traverse the force alleged
to have been used by me, touching the possession of the said premises, and
that Messrs. Styles and Bates, who I hear claim title thereto, never were in
possession of the said premises, but that they intruded themselves thereupon
when part of my family and my servants were in possession of such premises,
and when I myself was attending the funeral of my mother, and stated that
they would use force to turn me out, and that I am prepared with evidence
to support these facts, and now tender my witnesses to you for examination,
and that if after this you dispossess me, or interfere with me in any respect
touching the possession of the said premises, you will do so at your peril.
'* John Wilson."
Wilson was afterwards brought before the magistrates in custody, when
they informed him that they had convicted him on their view of a forcible
detainer, and had fined him 51., and that in default of payment he would be
committed to prison. Wilson denied the charge of forcible detainer, but they
refused at that time to hear any defence ; stating, that their own view was
sufficient ground for a conviction. Wilson then proposed to enter into re-
cognizances to try the validity of the conviction, and pay the fine and costs
if it should be confirmed ; but the justices refused to accept this offer, and
TRINITY TERM, 1836. 227
made out a warrant for his committal. A sheriff's officer was placed upon KingU Beitch,
the premises, but the warrant against Wilson himself was not enforced. On v^/^^
the following Tuesday an inquisition was held at the Town Hall, before Mr. *^® K'"®
Griffirif Mr. Brooke, and Mr. Welherell^ (a third magistrate who then first jq„„ Wilson.
took part in the proceedings) for the purpose of trying the traverse tendered
by IVitson, as to the allegation in the conviction, thai he had kept possession of
the premises by force. Upon this occasion Bates and Styles produced the
will under which they claimed, and brought evidence of the alleged force ;
and they also relied on the conviction itself. This production of the convic-
tion in evidence was objected to by JVilson, but was admitted by the magis-
trates, fnison cross-examined the witnesses produced, and also called wit-
nesses of his own to negative the force stated to have been used by him.
The information which lay on the magistrate's table at this inquisition, was
admitted by them to be the information and complaint upon which they had
proceeded. On the part of fVilson^ this information was objected to, as not
alleging that there had been a wrongful entry. The objection was overruled
by the justices, and the jury found Wilson guilty of an illegal detainer, and
the magistrates then directed a restitution of the premises to Bates and Styles.
This direction they indorsed on the inquisition. The inquisition, as returned
to the writ of certiorari issued in this case, was in the following terms : —
" County of Leicester to wit — An inquisition for our Sovereign Lord the
King, indented and taken at the Town Hall o£ Market- Harborougky in the said
county, the 10th day of September, in the fourth year of &c. (4 Will, 4), by
the oaths of twelve good and lawful men of the said county, before the Rev.
Edward Griffin and John WethereU, Clerks, and William de Capel Brooke, Esq.,
justices &c., assigned &c., who say upon their oaths aforesaid, that John Wil^
son of Market' Harhorovgh aforesaid, carpenter, on the 28th day of August
now last past, into and upon one messuage, with the appurtenances in Market^
Harborough aforesaid, in the county aforesaid, whereof Thomas Bates, of &c.,
watch-maker, and John Styles, of &c., grocer, were then lawfully and peace-
ably seised to them and their heirs, in their demesne as of fee, unlawfully
did enter, and the said Thomas Bates and John Styles, from the messuage
aforesaid, unlawfully ejected, expelled, and amoved, and the said messuage
from them, the said Thomas Bates and John Styles, unlawfully, with strong
hand and armed power, did hold and from them detain, and from 'the S8th
Jugust now last past, until the day of the taking of this ihquisition, with like
strong hand and armed power, did keep out, and doth yet keep out, to the
great disturbance of the peace &c., and against the form of the statute in
such case made and provided.
** We, whose names are hereunto set, being the jurors aforesaid, do, upon
the evidence now produced before us, find the inquisition aforesaid true.
" Signed, &c."
Upon the above inquisition, the following memorandum of restitution was
indorsed.
" County of Leicester. — Be it remembered that we, Edward Griffin and
John Wetherell, Clerks, and William de Capel Brooke, Esq., justices, in the
within inquisition named, did this lOtb day of Septetnber, in the year &c., per-
sonally go to the roessuage«and other the premises in the within written in-
quisition mentioned, and did reseize the same with the appurtenances, and
q2
228 TERM REPORTS in the KING'S BENCH.
King'i Bench, did put the within-named Thomas Bates and John Styles into fuU possession
>^^/^ thereof, according as they, before the entry and forcible detainer thereof by
The Kino j^^^ JFiison, in the said inquisition mentioned, were seised according to the
John Wilson. Statute in such case made and provided. Given under our hands and seals.
*' Signed and sealed, &c."
Sir tV, FolUtt showed cause against the rule for quashing the inquisition. —
The great question here is, whether, under the statute of Henry 6, the party
was liable to be convicted of a forcible detainer, without proof that he had
made a wrongful or unlawful entry. The conviction here has been held
bad (a) ; but the judgment then given cannot affect the inquisition, which ift
perfectly sufficient. — [^Patteson, J. — It was assumed at that time, that the
inquisition was founded on the conviction.] — In Rex v. Oakley (6), it is true
that Mr. Justice Parke doubted whether the original entry must not have
been unlawful, in order to give the magistrates jurisdiction. But those
doubts were considered in the former discussion of this case, and were not
treated as of very great weight (c). The conviction however may be bad for
the want of a statement that the entry was unlawful ; but the inquisition is,
nevertheless, good, for it distinctly states that fyUson^ on the 28th of August^
" unlawfully did enter," and unlawfully expelled Bates and Styles, and with
a strong hand did detain &c., and the justices therefore award restitution.
Their right lo do this depends on the statutes 15 Richard 2, c. 2, and
8 Hen. 6, c. 9. The first of these statutes gives the justices jurisdiction on
a forcible entry alone ; and not to any other authority but that of the jus-
tices is such jurisdiction confided. The next statute, 8 Hen. 6, c. 9, extends
the power of the justices to wrongful entries, or to forcible detainers, where
the original entry has been wrongful, though effected peaceably. This last
statute authorizes the justices, aAer inquisition by a jury, to reseize the pre-
mises. The proceedings in this case were perfectly regular under the third
section of this last statute, and the first part of the rule is therefore an-
swered. As to the last part of the rule, it is clear that the statute does not
give this Court jurisdiction to award re-restitution against the order of the
justices. But if this Court is to proceed on its common law authority, then
it will require proof that the parties claiming its aid have acted bond fide.
In Russel on Crimes (d), it is said that the Court of King*s Bench has such a
discretionary power over this matter, upon an equitable construction of the
statute, that if the restitution appears to have been ill executed, this Court
will set it aside and award re-restitution ; but it will not do this till it appears
that the party claiming such re-restitution has good right thereto. It is dis-
cretionary in this Court to grant re-restitution where the restitution has not
been tortious; Rex v. Harris (e). The affidavits clearly show that it has
not been tortious in this case, and the Court may therefore refuse the re-
restitution. If the defendant here really has right to the premises, he may
assert his right in a proceeding by ejectment.
Hill, contrd. — This rule can be supported as to both its parts. The judg-
(a) 1 Harr. & Woll. 387. the name of the learoed judge is printed Park,
(6) 4 Barn. 6c Ad. 307. instead of Parke,
(c) See the judgment of the Court, 1 Harr. (d) Vdl. 1, 293.
& WoU. 388—390. By a typographical error {e) 1 Lord Raym. 482.
TRINITY TERM, 1836. 229
ment of the Court on the former occasion was intended to affect both the KtHgU Bench*
conviction and the inquisition ; but it being found that the rule related in v^^>^
form only to the conviction, the judgment of the Court was necessarily con- The Kmo
fined to that. The inquisition here is merely ancillary to the conviction — it j^^^ Wilson.
is the mere trial of a traverse arising out of the conviction. The conviction
being bad, the inquisition which is founded on it must also be bad. This
is not a summary conviction in the legal meaning of that term, as used at the
present time. Until the 33 Henry 8, c. 6, justices out of sessions could con-
vict only on confession, or on view, and their conviction was traversable ;
Paley on Convictions (a). And if it was traversed, they were obliged,
according to the authority of Hawkins^ to call in a jury to try the traverse.
Reginay. Lay ton {b) was supposed in the former judgment in this case not
to have been brought to a conclusion, but in fact it was : the conviction there
was confirmed, there having been a valid complaint in the first instance, and
no traverse taken on the finding. The affirmance of the conviction may be
found in Fortescue (c). That case, however, distinctly shows that the point
on which the conviction proceeds may be made the subject of an issue, if a
traverse of the force is tendered at the time of the conviction. The inquisition
here does not recite the complaint, and so does not give the justices jurisdic-
tion. Two proceedings here might have been taken, one of a criminal nature
where fine and imprisonment might be awarded, the other of a civil nature for
the recovery of the premises. It lies on the other side to show that the jury
was summoned upon the complaint of the party that he had been wrongfully
dispossessed, and for the purpose of giving him the civil remedy. — [Pattesonf
J. — Lord Holt says, that the complaint is a necessary part of the conviction,
but not of an inquisition or an indictment]. — But it ought to appear on the
face of the inquisition. — [Patteson^ J. — No ; that is part of the finding of the
jury, but the complaint is not so.] — Both the proceedings here appear to be
upon the view, for the words " on the view** override the whole. — [Patteson^
J. — The second section of the 8 Hen, 6, says, that on complaint made by the
party grieved, the justices shall go to the place ; and the third section says,
that though the party may have departed before the justices come there, they
may inquire by the people of the county, so that they must go to the place
before they summon the jury.] — That is so, and the object of going and
summoning the jury is to get a conviction on the complaint. It is necessary
therefore that the complaint should be set out. The forms of the conviction
and inquisition used in this case, have been held bad in Rex v. Elwell (cf).
The authorities cited as to the discretion of this Court to award re-restitu-
tion, may be admitted, and then the affidavits here show that this is a case
in which the Court will exercise its discretion in favour of this defendant.
Sir W, Follett, in reply. — The forms of the conviction and inquisition are
those which are given in Burn (e). There is no necessity for the state-
ment of a complaint, for the inquisition was in fact a trial of the truth of a
traverse contained in a written notice, of which both parties were aware.
Cur. ado. vult,
(a) Introd. p.xxix. (d) 2 Lord Rajrm. 1514.
(/>) 1 Salk. 106—353. (e) Uuru*s Justice, lit. Forcible Entry and
(c) Fort. Rep. 173. Detainer, p 230.
230 TERM REPORTS in the KING'S BENCH.
King't Bench, I'Ord Denuani C. J., in the same term (June 13), delivered tlie judgment
v^^^^ of the Court.
The King
o. In this case, which has heen before the Court on a former occasion, we
John Wilson, j^^^^ ^^ggyj moved to quash an inquisition and award a writ of re-restitution,
in pursuance of our former judgment^ which set aside the conviction of the
defendant by magistrates for the offence of a forcible entry, and in which we
expressed an opinion that the inquisition founded upon it must also be set
aside. The grounds of that judgment were fully stated, and have not been
questioned in the argument on this rule ; but it was said, however defective
the conviction might be, the inquisition being the act of a jury regularly
brought together, and the result of an examination of witnesses at which both
parties assisted, ought not to be set aside. We are however of opinion, that
as the inquisition was founded upon the conviction, which turns out to be a
complete nullity, for reasons which it is unnecessary now to repeat, the
inquisition also is a proceeding without any warrant of law, and must be set
aside. Whether it may have effect as evidence in other controversies be-
tween the parties, we need not consider now. But indeed the inquisition is
in every other respect wholly inoperative, its use being to give effect to a
conviction, which is of course impossible, where the conviction itself is void.
If it could be permitted to stand as a part of the proceedings, it would appear
to justify the transfer of the possession worked by the conviction ; when the
conviction itself is given up as indefensible, this cannot be permitted. And
the inquisition, if taken by itself without reference to the conviction, is in
itself defective, inasmuch as it does not show that any complaint had been
made, nor by what authority or on what account the jurors were summoned.
But the defendant would gain nothing by our judgment, if we should merely
declare the proceedings null. Another step is necessary on the part of the
Court in order that full justice may be done him. If we allow him to remain
dispossessed of the premises he before held, full effect will be given to an act
which we have pronounced wrongful. A writ of re-restitution is prayed to
prevent this consequence, and the original complainant has stated his objec-
tions to our awarding that writ. On looking into the authorities (a) we find
that the Court has been in the habit of awarding that writ, when it has
quashed the conviction for forcible entry, otherwise the whole proceedings
here would be nugatory, and the practice is said to have grown out of an
equitable construction of the statute. It has been said, that the Court will
not do this, unless the party unlawfully dispossessed should appear to have
title to the premises — a most inconvenient inquiry upon affidavit, and a
course full of danger to the public peace, as protecting the execution of an
unlawful sentence. But in Rex v. Jones (6), the Court declared, even where
the conviction was quashed for a merely technical error, and the lease of the
dispossessed person had expired during the litigation, " that they had no
discretionary power in the case, but were bound to award restitution on
quashing the conviction."
This rule, therefore, for quashing the inquisition must be made absolute,
and re-restitution will also be awarded.
Rule accordingly.
(a) 1 Hawk. P. C. b. 1 , c. 64, s. 65, 66 ; Detainer ; Bac. Abr. FarcibU Entry and De-
13 Vin. Abr. 392, title Forcible Entry and taitier,
{b) 1 Stra. 474.
TRINITY TERM, 1836. 2ai
King'i Bench,
Evans v. Elliott and Patrick. "^"^^
'DEPLEVIN. The declaration stated that the defendants took the cattle where a landlord
of the plaintiff, and unjustly detained the same against sureties and SllireM for rent,*
pledges until &c. Avowry by Elliott and cognizance by Patrick in the •ad after die dia-
usual form, avowing and acknowledging the taking of the cattle for 27/., ^^em^tw^uu-
being half a year's rent due to Elliott on a demise by him to the plaintiff*, dered but refused,
PUa in barf — that after the taking of the cattle, and before the impounding mainu^nre^eJia
thereof, to wit, on &c., the plaintiff tendered to Patrick^ who was then duly in respect of uie
authorized to receive the said rent &c., the said sum of 27/. lOs, so due tainer.
for rent, as in the said avowry and cognizance mentioned, together with 5/. i>eciaration
for the costs and taking of the said distress, that sum being reasonable and Uie common form,
sufficient for the costs and expenses in that behalf; which several sums ufied^theukkT
respectively Patrick then wholly refused to accept, and aflerwards unjustly of the goods for
detained the said cattle against sureties and pledges until &c., in manner [n bw- stated**uiat
and form as the plaintiff has above thereof complained. Verification^ &c. »fter the distress.
Demurrer to plea in bar, stating for cause, that it does not traverse or sufli- impounding, a
ciently confess and avoid the several matters in the avowry and cognizance *«nder of Uie rent
above set forth in this, to wit, that the said plea is pleaded to the whole of refused, and the
the avowry and cognizance, and contains matter in answer to only part 8*>o<*» *«™ ^^
thereof, inasmuch as the matters contained and set forth in the said plea in declaration suted:
answer to the said avowry and cognizance, avowing and acknowledging the ^^*^Q^*lg^
taking and detaining stated in the declaration, do not show that the taking the detenuon
stated in the declaration was not just. Joinder in demurrer, b^alfew u^*
iog.
Evans, in support of the demurrer. — The plea in bar is no answer to the
avowry, but is a departure. The proceeding here should have been de-
tinue, not replevin. In the Second Institute {a) it is said, " Before the distress,
the tenant may upon the land tender the arrearages, and if after that a dis-
tress be taken, it is wrongful ; and if the lord had distrained, if the tenant,
before the impounding of them, tender the arrearages, the lord ought to
deliver the distress ; and if he doth not, the detainer is unlawful." This
rule is adopted in the Six Carpenters' case (A). In Selwyn^s Nisi Prius (c), it
is said, "If distress has been made^ and, before impounding, the arrears are
tendered, then the detainer only is unlawful, and the tenant must bring
detinue.** Here the plea in bar simply goes to the detainer, and the taking
being justified by the avowry and cognizance, the replication does not touch
the justification. — \^Patt€SO?iy J. — The declaration is for taking and unjustly
detaining ; the avowry only justifies the taking ; perhaps the defendant
might have gone on and justified the detaining also.] — The authorities show
that the justification here is sufficient, and the rule already stated holds in
the case of a taking damage feasant.
V. JVilliams, contrd, — The argument on the other side proceeds on a
fallacy. It is clear that replevin lies under the circumstances of this case.
In Fitzherbert's Natura Brevium{d) it is said, " If a man take cattle for
(a) 2 Inst. 107. (c) 7lh edit. p. 1200.
(6) 8 Rep. 146. (d) 159, (G).
Evans
V.
232 TERM REPORTS ik the KING'S BENCH.
King't Bench, damage feasant, and the other tenders amends, and he refuseth it, now if he
sueth a replevin for the cattle, he shall recover damages only for the de-
taining of them, and not for the taking of them, for that the same was
Elliott lawful." — \_Panes(m, J. — That is on the assumption that the replevin is
and another, brought for the detainer only.] — In Finer's Abridgment (a) there is a passage
to the same effect ; and in Gilbert on Distresses (b) it is said, " Where the
lord impounds the beasts notwithstanding the sufficient tender of the tenant,
the tenant hath no way to recover his cattle but by his writ of replevin." In
Jllen V. Bayley (c) the pleadings were similar to the present, and the objec-
tion taken was, that it was not expressly alleged that the tender was before
the impounding ; but the Court held that it was sufficiently stated, and
treated this form of action as the only proper one under the circumstances*
In Pilkington v. Hastings (d) replevin was brought for an unlawful detainer
of this sort, and the proceeding was never questioned, though every possible
objection was raised in that case ; and in the Six Carpenters* case (e) it is
said, " So if a man take cattle damage feasant, and the other offers sufficient
amends, and he refuses to deliver them, now if he sues a replevin he shall
recover damages only for the detaining of them, and not for the taking, for
that was lawful." The last authority is that of Anscomb v. Shore {f). That
was a special action on the case for detaining the plaintiff**s cattle after a
tender of amends ; an objection was taken by Chief Justice Mansfield as to
the form of the action, who said, " that by suing out a replevin the plaintiff*
might have got the beasts back into his custody almost immediately affer
they were impounded ;*' and this holding was afterwards confirmed by the
Court (g). There has been no informality in the pleadings here. The
form of the writ of replevin is, that the party took and detained the cattle.
The declaration must follow the writ. The plea in bar is only explanatory
of the declaration. If a proper tender is made, and the landlord refuses it»
he makes himself a trespasser as well as a wrongful detainer ; Virtue v.
Beasleyih), That case clearly establishes that an unlawful detainer is to l>e
treated as an unlawful taking. This plea in bar is like a replication in the
nature of a new assignment ; Greene v. Jones (t). If the unlawful detainer
arises from a lawful taking, still the avowant is not entitled to judgment on
the demurrer, on the assumption that that avowry is an answer to the whole
charge. It is clear, first, that this action lies ; and secondly, that where this
action is brought under circumstances like the present, it is not necessary
that the pleadings should assume a new shape, but that, this being an
ordinary case of replevin, the pleadings are to be in the ordinary form.
/. Evans, in reply. The plea in bar itself raises the distinction between
the taking and detaining, for it alleges a tender after the taking and before
the impounding. The argument on the other side goes to show, if it is
worth any thing, that trespass would lie for detaining goods after a tender of
amends — a position which cannot be supported.
{a) Tit. Tender (S), pi. 1. (/) 1 Camp. 285.
(6) 2d edit. p. 63. {g) 1 Taunt. 261 ; see also Sheriff v.
(c) 2 Latw. 1594. James, 1 Bing. 341.
(d) Cro. Eliz. 813. {h) 1 Moo. & Rob. 21.
(e) 8 Rep. 146. (t) I Wms. Saund. 299, n. 6.
TRINITY TERM, 1886.
233
Evans
V,
Elliott
aod another.
Lord Denman, C. J. — It appears to me that this is a very critical ohjec- King^i Bench.
tion. I think that the plea in har is well enough. If every continuance of a
trespass is, as we know it is, a new trespass, then every detention must be a
new taking. After the tender made, the detention clearly was a new taking.
The word ** taking'' has not such a technical sense as that it cannot be
applied in this manner.
LiTTLEDALE, J. — I am of the same opinion. The detaining after the
tender was sufficient to satisfy the words of the declaration as to the taking.
Patteson, J. — The authorities cited by Mr. fViUiams are amply sufficient
to show that replevin will lie for the detention, and that is the real question
here.
Williams, J. concurred.
Judgment for the plaintiff*.
Painter v. The Liverpool Oil Gas Light Company.
nPROVER for coaches, horses, and harness. — Plea, justifying under the JosUces nuUio.
4th Geo. 4, c. 39 (a), alleging that the plaintiff*, after the passing of the ^f pwiiame^to
said act for lighting the town of Liverpool with oil gas, and before the time pn>c«fd »>y w.r-
when &c., to wit, &c., was indebted to the defendants in a large sum, to to enforce payment
wit, &c., for gas supplied by contract, and that afterwards, and while the **^ "*"' *** » "*"*
plaintiff* was so indebted, to wit, &c., fVilliam Henry Parkinson the collector pued bjthntrom.
for the defendants, left at the place of business of the plaintiff a demand in p«»y. ought not to
' * , -^ do so witlioat a
wntmg of the said sum so due and owing from him to the said defendants ; prevtoua snmmona
and afterwards, and more than ten days after the leaving of the said demand l^hom'the^wrant
at the said place of business of the plaintiff*, as aforesaid, he the said ia to be issued.
fV, H. P. then being such collector, and so acting under the authority of the nndtr^mchllt^
said defendants as aforesaid, to wit, on &c., preferred a complaint against the tote for a warrant,
plaintiff* for the premises aforesaid, before James Aapinally then being one of MWes or^their^
officer afterwards
of any justice of the peace for the said town •«««om' it. cannot
of Liverpool, or county of Lancatter (as the IJ\hJi; ".^i^"'
case may require), and it shall be lawful for jj^^^ ,„ J"„ ^^
the said compauy, or their clerk or snperin- of trespass brought
tendant, or any person or persons acting un- against them by
der their authonty, with such warrant to levy the party whose
the said sum or sums so due and owing as goods have been
aforesaid, by distress and sale of the gM>dt aeiaed under it.
and chattels of the party or parties so neglect- >' ■••«»» that the
ing or refusing to pay the same, rendering the ^•"•"t ought to
overplus, if any, to such party or parties, after "^^J^"** demand
deducting die necessary charge of such dis- ^^ .^Jl^"^, "^
tress and sale ; or the same may be recovered in ^^^ng on which
the Borough Court of Liverpool, or in any of the conviction pro-
his Majesty's courts of record in England, by cecded.
action of aebt, or on the case, bill, plaint, or
information, &cc"
By section 74, any person thinking himself
aggneved by any rule, bye- law, or order of the
said company, or any thing done in pursuance
thereof, or by the order or determination of
any justice or justices of the peace, in pursu.
ance of this act, may appeal to the sessions.
(a) 4 Geo, 4, c. 39, (local and personal,
public) s. 72, enacts, " That in case any par-
ty or parties, who shall contract with the said
company, or agree to take, use, or enjoy, the
benefit of the said gas, shall refuse or neglect,
after the space of ten days after demand made
or left in writing at the place or places of
abode or business of such party or parties, to
pay the rents, or sura or sums of money then
dne for such gas, to the said company, ac-
cording to the terms and stipulations of the
said company, it shall be lawful for the said
company to separate his gas pipes from their
mains ; and that the rent or rents, sum or
sums of money then due from any such party
or parties to the said company, for such gas,
as also any other rent or rents, sura or sums
of money due or owing to the said company
for gas supplied by them to any person or
persons, shall and may be recovered by the
said company, or their clerk or superintendant,
or an^r peison or persons acting under their
authority, by warrant under the band and seal
334 TERM REPORTS in the KING'S BENCH.
Kin^s Bench, his Majesty's justices of the peace in and for the said county of Lancaster^
^^^y^^ and thereupon afterwards the said J, Aspinall, so being such justice for the
Painter g^i^ county as aforesaid, and before the said several times when &c., to wit,
The Liverpool ^° ^^*» according to the form of the statute in such case &c., duly made
Oil Gas Light and caused a certain warrant under his hand and seal, directed to Uie sub-
ompaDy, j^niji^g^ l^ead constables, and assistant constables, in and for the borough of
Liverpool, and also to the said IVilliam Henry Parkinson and John Hampson,
and their assistants, and thereby then authorized and commanded them, every
or any of them, that upon the goods and chattels of the said plaintiff they
should levy the said sum of \2l, 18^., for xhat he being a person who had
contracted with the said defendants to take the benefit of the gas from the
said defendants, did refuse and neglect, afler demand lefl in writing at the
place of business of the said plaintiff, to wit, on &c.^ to pay the sum of 12/. 18«.,
being the rent due to the said defendants from the said plaintiff, for gas con-
sumed by the plaintiff, contrary to the form of the statute &c., whereof he
the said plaintiff was duly convicted, and for the levying thereof they were
to seize, take, and carry away the said goods and chattels, and if, in five days
after such seizure, the said sum of 12/. 18«., together with the reasonable
charges, &c., should not be paid, then and in such case, afler the expiration
of the said five days, they were to make sale thereof, or of so much thereof
as should be sufficient to levy the said sum, &c. The plea then stated, that
Parkinson being so clerk, and acting under the authority of the defendants,
did seize, take, and carry away, under and by virtue of the said warrant, cer-
tain goods and chattels of the plaintiff*, being the goods and chattels in the
declaration mentioned, for the purpose of levying the said sum, &c., and did
afterwards, and more tlian five days after such seizure, to wit, on &c., sell
&c., for the purpose of satisfying and discharging the said sum.
Replication, — That the plaintiff* was not, at any time before the said James
Aspinall made the said warrant in the said plea mentioned, summoned or
warned to answer the said complaint of the said IV, H, Parkinson against the
plaintiff, for the said supposed debt, before the said James Aspinall, or any
other of his Majesty's justices of the peace ; nor did he before then have any
notice of such complaint, nor did he appear before the said James Aspinall,
or any other of his Majesty's justices of the peace, or any officer or person
whatever, authorized or empowered to hear the said complaint, to answer the
said complaint ; and the said warrant was made and issued against him, as
. aforesaid, without his having had any means or opportunity to hear or answer
the said complaint ; wherefore the defendants, of their own wrong, &c.
Rejoinder, — That the gas was supplied after the passing of the act, and that
Parkinson, as such collector, &c., left a demand in writing at the place of
business of the said plaintiff, thereby requiring him to pay the said sum, &c.,
so due and owing from the said plaintiff to the said defendants, as in the said
last plea mentioned. Conclusion to the country.
Demurrer, — Because the rejoinder neither confesses nor avoids, nor tra-
verses nor denies, the matter of the replication ; and because it tenders an
immaterial issue. Joinder.
Wightman, in support of the demurrer. — The point intended to be raised
here is, that a summons ought to have been issued, calling on the party to
appear before the justices, and to show cause against the demand, previously
TRINITY TERM, 1836. 235
to any execution issuing against him ; and that unless there are some prohi- King's Bench,
bitory words in a statute, rendering such summons wholly unnecessary, it s^/^
most be issued. The party called on to pay may have some sufficient ex- Faimtsr
cuse for not paying, of which he cannot avail himself if he is not summoned i-he Literpooi.
before the justice.— [Lord Denman, C. J.— This Court has often refused to Oil Gas Light
grant a mandamus to justices, to issue a warrant in cases where no summons oQ^pAny-
had been previously served on the party.] — And that is the principle adopted
in Rex v. Justices of Stafford (a) ^ which was in conformity with Rex v. Benn (6).
— [Lord Denma/iy C. J. — We have no doubt that that is the just and reason-
able course, you have to show that it is essential.] — All the authorities, and
even the words of this act, show that it is so. The act gives the company the
option of proceeding in this summary way, or before the Borough Court, or by
action in a Court of record. In any of these cases, the party against whom
the claim is made must be heard in his defence. There is no authority in
the statute for the justice proceeding to issue his warrant, without summons,
and without hearing the party.— [Zt^//eda/e, J. — ^The warrant of distress
here does not even say that the demand had been left at the house ten days
before the warrant was issued.] — It does not. — [^LUtledale, J. — But the re-
joinder states the demand and non-payment after ten days.] — For the pur-
pose of the present argument, the rejoinder may be dismissed from the con-
sideration of the Court. The 73rd section of the act speaks of an order or
determination of the justice, and gives an appeal against it — there can be no
order or determination without a hearing. The act does not prescribe the
exact manner in which the company shall conduct the suit, nor how it shall
procure a warrant, but in each case it must of course be according to law. This
act does not go further than the 43 Eliz.f nor are its provisions more strict
than those for the summary recovery of the poor's rate. — [Lord Denman, C. J.
— As there is nothing laid down in the statute as to what must be done in order
to render the warrant lawful, you must resort to the general principle to show
that this warrant could not be lawful without a summons and hearing.] —
That principle is perfectly clear, and there is nothing in this statute to show
that this company is to be excused from conforming to it. In Rex y. fienn. Lord
Kenyan said, " the payment of a poor-rate, unless it be set aside, must be en-
forced ; but a summons roust precede a warrant of distress, which is in the
nature of an execution. It is an invariable maxim of our law, that no man
shall be punished before he has had an opportunity of being heard ; whereas,
if a warrant of distress were to be issued without any previous summons, the
party would have no opportunity of showing why execution should not be
had against him.'* The case of Rex v. Staffordshire^ which proceeded on
the same principle, related to a local act of parliament. —[Lord Denman^ C. J,
— We did not mean in that case to lay down any general rule on the subject,
but merely to say, that under the particular circumstances existing there, we
did not think it fit that a mandamus should issue.] — Still the principle of law
is clear, tliat a man cannot be condemned without being heard, and there are
many authorities to show that a summons must precede a warrant.
Cowling, contrd, — The proceedings taken here are valid, even without a
summons. The sole question here is, whether what was done» was within
(a) 1 Harr. & Won.328 ; 6 Nev. 6c Mao. 3 Ad. & £1. 485.
94; S. C. nom. Hex v. Hughes and Rogers, (6) 6 Term Rep. 198.
236 TERM REPORTS in the KING'S BENCH.
King'tBenefu the jurisdiction of the magistrates. It is clear that it was so. Then it is
>^/^ equally clear that the want of a summons would only make the proceedings
Fainter erroneous, not void, and consequently they afford a sufficient justification to
The Liverpool any person who has acted under them. In the case of the MarshaUea (a),
Oil Gas Light this distinction will be found to be recognized. It was there resolved that (6)
1^°^* « a difference was to be taken when a Court has jurisdiction of a cause, and
proceeds inverso ordine^ or erroneously ; there the party who sues, or the
officer or minister of the Court who executes the precept or process of the
Court, no action lies against them. But when a Court has no jurisdiction
of the cause, there the whole proceeding is coram nonjudice, and actions will
lie against them, without any regard of the precept or process." The pre-
sent case falls within the first part of the rule, and the act done here, having
been done under process from justices who had jurisdiction, cannot now be
questioned. In Webb v. Batchelour (c), the plaintiff*, a clergyman, brought
trespass for taking his cows. The defendants justified under a warrant
issued to enforce statute duty on the highway. This very objection was raised,
that the plaintiffs had not been summoned and heard ; but the Court held«
that the matter being within the jurisdiction of the justices, though they had
acted erroneously in not summoning the party, yet the defendants, who acted
under their warrant, were justified. It must not be assumed in this case,
that the man could have had a good excuse for not paying ; but if that is
assumed, then the answer is to be found in the observation of Lord Chief
Justice HaUy in the case last cited (d), *' You might have gone to the justice,
though after the distress, before it was sold, if you had any excuse." — [L»f-
tledalcy J. — How could the party have been relieved by doing that ? Who was
the justice to relieve him ?]— He could have been relieved by die justice making
an order for the goods to be restored. Where the proceeding has been
erroneous, the conviction may be set aside, as in The Queen v. Dyer (f ), where
the party was summoned for an impossible day ; but there PoweU, J. said,
that if an action was brought against an officer for executing this conviction,
it would not lie, " for an erroneous conviction would justify him." The
principle of these cases has been most fully recognized in Ackeriey v. Par^
kin8on(J'\ where the vicar-general of the bishop was held to be justified in
having pronounced an excommunication for contumacy, though the citation
on which it proceeded afterwards proved to be void, and the proceedings
thereupon had were subsequently set aside upon appeal — the vicar-general
having properly jurisdiction in the matter.— [Pa^/e«oii, J. — But the distinc-
tion between all those cases and the present is, that this is not an action
against parties acting under the warrant, but against the company who first set
the justices in motion.] — Then there is a good defence under the general
issue. The defendants in Webb v. Batchelour ^ were the parties who had pro-
cured the warrant. To maintain trover, a conversion is necessary, and here
there is no conversion but what took place under the warrant. The mean-
ing of the legislature was, that the company should have the same rights as a
landlord would have for the recovery of rent in arrear, and the only reason
for introducing the justices at all was, that where there were so many tenants,
(a) 10 Rep. 68. (rf) Freem. 490.
(6) Id. 76 a., (e) 6 Mod. 41.
(c) 1 Venlr. 273 ; Freem. 396, 407— 488 j ( / ) 3 Maule & Selw. 411.
and 3 Keb. 476—507.
TRINITY TERM, 1836. 237
the direct exercise of a landlord's power, without the intervention of a King's Bmclu
justice^ might lead to a hreach of the peace. If the justice here has acted v^n«%/
ministerially, no action will lie against him, for he was not bound to sum- Paivtkr
mon the party ; if he has acted judicially, the proceedings are merely erro- jhe Liykrpool
neous, and the parties acting under his warrant have a good justification. Oil Gas Light
Company.
Wightman, in reply. — It may be admitted, that in ordinary circumstances,
trespass would not lie against justices for any thing done by them judicially,
if it was merely erroneous. But that is not the case here. The action here
is not against the justices, nor against their officer, acting merely in obe-
dience to the warrant but against the parties who applied for and then exe-
cuted the warrant. That warrant is bad upon the face of it, and Groome v.
Forrester (a) shows that when it is so, even the justices themselves may be
answerable in trespass, though the matter on which they have decided was
within their jurisdiction. The defendants here were the plaintiffs in the ori-
ginal suit before the justices ; they come therefore within the rule laid down
in Parsons v. Lloifd (A), where a capias being void, trespass was held to lie
against the plaintiff in the original action, who had caused it to be executed.
Lord Chief Justice De Grey said there (c), " The defendant in the original
action has been greatly injured. He is entitled to a remedy somewhere —
but not against the sheriff or his officers, who are bound to obey the writ
issued under the sanction of the Court. The officer not being liable, the
plaintiff must be. He has procured the writ to be sued out, and is answer-
able for all its consequences.*' The present case is strictly within the analogy
of the one cited.
Lord D£NMAN, C. J. — The first question in this case is, whether the war-
rant set out in the plea is a good justification to any person who acted under
it in taking the goods of the party charged with being a defaulter in the pay-
ment of his rent. It is said to be so under the 72nd section of the statute
4 Geo. 4, c. 39, by which the magistrates are authorized to issue their war-
rant, in case of neglect or refusal to pay the company the rent due for the use
of the company's gas. In order to decide this point we must consider, upon
general principles, whether justices authorized by the statute to proceed by
warrant in execution may do so without a previous summons to the party
against whom the warrant is to be directed. No case as yet has furnished an
express authority on this subject, for although Lord Kenyon intimated an
opinion upon it in Rex v. Benn {d\ it was not necessary, for the decision which
the Court there came to, that this point should be determined. But in the
present case I am of opinion that the warrant ought not to have been issued
but upon a previous summons. The warrant states that the plaintiff* having
contracted with the defendants for a supply of gas from them, refused, ader
demand made in writing, to pay the rent due to them for gas consumed by
him, whereof he was duly convicted. The very terms of this warrant, refer-
ring to a contract and to a non-performance of it, make it evident that the
party ought to have been summoned to show either that he had not refused
to pay, or that he had an excuse for not paying. We are therefore called
upon by the general principles of the law on which we are bound to act, to
say that this warrant is illegal, because the party against whom it issued had
(a) 5 Maule & S«). 314. (c) Id. 846-7.
(6) 2 Sir VV. Bl. 845. {d) 6 Tenn Rep. 198.
238 TERM REPORTS ik the KING'S BENCH.
King'i BiueK, ^^ opportunity given him of showing whether he was duly liable to be treated
v^v^ as a defaulter under this statute. But then it is said that a warrant may be
Paihtek illegal in itself, and yet furnish a full justification to the officers who act
The Liverpool ^^^^^ ^' • ^*' ^^V ^^^ bound to obey it, and that they cannot canvass its
Oil Gas Light correctness. It is true that an officer is bound by his duty to execute a
Company. warrant which is directed to him ; that he cannot pause in the execution of
it till he is satisfied that the judge who issued it has acted exactly \h con-
formity with all the requisites of the law ; and it is equally true that an
officer acting under a warrant in discharge of his duty as an officer, will be
protected by that warrant. Acts of parliament have been passed for the
protection of officers founded on this principle, and it is a just one; for it
would be absurd that an officer charged with the execution of a warrant
should have to consider, before he executed it, whether it was regularly issued
or not. But here the parties relying on the warrant are not officers acting
under it ; it is not even the clerk of the company who justifies, but the di-
rectors themselves, who allege that their clerk, acting under their authority
and by their command, took the goods by virtue of the warrant. The case,
therefore, is like those where the question has been, not whether an officer
was justified, but whether the parties who set him in motion were justified.
It appears to me that the defendants here are not in a condition to justify.
The decision in Webb v. Batchelour (a) does not apply to this case, for the
principle there laid down was, that an officer is not liable for executing an
irregular warrant ; a doctrine also stated by Mr. Baron Powell, in Gwinne v.
Poole (6), where he said, that if it was otherwise it would be to make the con-
stable more knowing than the justice. Those cases would have resembled
the present if the defendants there had been parties intervening between the
magistrates and the officer, and justifying themselves for employing the officer
to act. It appears to me that if a third person takes upon himself to direct a
constable to act, he also takes upon himself to make out a good defence for
what has been done. The defendants have failed in doing that in this case,
and the plaintiff is therefore entitled to judgment.
LiTTLEDALE, J. — I am of opiuiou that it was necessary, in order to render
this warrant available, that a summons should have issued in the first
instance. The case is like Rex v. Benn (c), which was upon the statute 43
Eliz. c. 2. The fourth section of that statute empowers justices by their war-
rant to levy the poor rate upon every one that shall refuse to contribute, by
which a refusal before justices appears to be more clearly pointed out than in
the early part of this statute of the 4 Geo, 4, c. 39, s. 72, where it is said,
that if any party shall refuse or neglect, after the space often days after the
demand in writing, to pay the company's rents, they may be recovered by
warrant of a justice ; though it may be observed, that in the part of the sec-
tion which immediately follows the mention of proceedings before the justice,
the words '* so neglecting or refusing to pay,** occur again. And the
operation of both statutes in this respect ought to be the same. In the case
of malicious injuries, punishable by summary conviction under statute 7 & 8
Geo, 4, c. 30, a justice is empowered by section SO, on a charge being made
before him, to issue his warrant for apprehending the party charged without
(a) 1 Ventr. 273 ; Freem. 396, 407, 457, (6) 2 Lutw. 936, 1660.
488. (c) 6 Terra Rep. l98.
TRINITY TERM, 1886. 239
previous summons, but that is in the nature of a criminal proceeding ; and King's Bendu
the warrant there issues not for the purpose of levying a fine on the defendant, v^^/^i'
but only for the purpose of bringing him before the justice. The warrant I'ainter
here is in the nature not of mesne process, but of an execution, and both upon The Literpool
the principle stated in Rex v. Benn (a) ; and in common justice, such exe- Oil Gas Light
cution ought not to issue without a hearing of the party. Without a summons ^^*
the party has no opportunity of going to the justice. When the demand is
made, he can only apply to the gas company themselves, for at that time at
least no summons from a justice has issued. As to the legality of the war-
rant, therefore, I think that it ought not to have been granted without a
summons. Then as to the protection claimed by these defendants, it is true,
that according to fyebb v. Batchelour (6), an officer in a case like this would
be protected, because it does not belong to him to say, " there is an error in
the proceedings, therefore I will not execute the warrant.*' But this is an
action against the directors themselves ; they are the persons who put Par"
kmson^ the collector, in motion, and cause him to demand the rent and seize
the goods. It is not he that justifies, but they who allege that he acted under
their authority ; they adopt the warrant, and they indentify themselves with
him throughout the transaction. It was their duty then to see that the war-
rant was a proper one, and as for want of a summons, it is not so, the judg-
ment must be against them.
Patteson, J. — The first question here is, whether the warrant is bad upcm
the face of it. I have not the least doubt on that subject, on the words of
this particular act of parliament. It is not necessary to determine what
would be a good warrant on every other act of parliament. The statute of
Elizabeth^ and that now in question, are not analogous to each other in all
respects, as perhaps no two acts are ; but it is sufficient to say, that on the
fiice of this act there is not the slightest doubt in the world that the party
ought to have been summoned before a warrant was granted against him.
There are many clauses in this act providing for the recovery of penalties
and damages by summary proceedings before justices, and authorizing them
to issue warrants for levying the sums to be recovered. Scarcely any two
of them agree in their terms, and in none of them is a summons mentioned
except in sec. 70, which relates to compensation for damage done to lamps.
It cannot be supposed that the legislature meant the justices to proceed upon
summons in that case only ; and if in others, why not in this ? Taking all
the provisions together, the intention evidently is, that the justices should
issue their warrant for the recovery of these rents after the proper steps have
been taken, and not otherwise. The question raised by the defendants comes
to this, whether the proceeding of the justices was judicial or ministerial ; if
it be judicial, the justices cannot have issued their warrant without having
determined some point, and that should have been upon hearing the parties.
Mr. Cowling says, that the party distrained upon may apply to the justices
afler the distress, but that is not a satisfactory answer, for the goods may be
sold immediately; and though in this particular case the justice granted five
days, yet that was in his discretion ; the act says nothing of any time to be
given ; and although the justice in this case here did make the allowance of
that space of time, the mere circumstance of his having done so does not alter
(a) 6 Term Rep. 198. (h) 1 Ventr.273 j Fretm.3d6, 407, 467, 488.
240 TERM REPORTS in thb KING'S BENCH.
King's Bench, ^^® rights of the parties. In the case of Webb v. BaUhelour (a), it was
N^s/^ assumed throughout that the warrant was bad for want of a previous suin-
P A INTER mons. It is true that the particular case arose under a statute which con-
The LivEKPOdL ^°6<^ ^^ words *' not having a reasonable excuse to be allowed by the said
Oil Gas Light justice/' but the whole case shows that even at that time a summons was held
Company. ^^ y^ necessary before a warrant issued in execution ; which, as my brother
Uttledale has pointed out, differs much in this respect from a warrant in the
nature of mesne process. The remaining question is, whether the present
defendants can justify under the warrant, it not having been directed to them,
but to their clerk. The reasons for which such a warrant, though irregular,
would be a protection to an officer is, that he would not be entitled to set up
his private opinion against that of the justice as to the goodness of the war-
rant. He is bound to obey it, and is therefore protected in doing so. But
the defendants were not so bound. If they did not act upon the warrant they
were in no way answerable, and they cannot justify under it if they have
officiously used it. The case is not like that of persons called in to assist
those who have a warrant to execute. This is an action of trover against
parties who first set the law in motion, who have received the fruits of the
levy, and who plead that the goods were taken by their officer and under their
direction. They have officiously interfered in the execution of the warrant ;
they must answer for this, and they cannot set up in their defence the warrant,
which was not directed to them. In Webb v. BatcheUmr (a) the case was
quite different, for the parties who justified under the warrant were those to
whom the warrant was directed, and who were bound to obey it.
Williams, J. — There is no doubt that the issuing of this warrant was a
judicial act. By section 72 of the Gas Company's Act no proceedings can
be taken, whether summarily or by the ordinary process of law, for recovery
of the rents in question, until the expiration of ten days after demand. A
warrant then for the purpose of this levy could not be claimed as matter of
course, and without inquiry to satisfy the justice that it was grantable, any
more than a warrant to arrest for felony could be claimed without any good
ground being made for such a proceeding. The act, therefore, being clearly
judicial, the party against whom the application was made should have been
summoned, and have had an opportunity of showing cause against the granting
of the warrant. Rex v. Benn (6) was decided under a different statute,
and the judgment of Lord Kenyan, which has been referred to, went some-
what beyond the immediate question iu the case ; but I never heard the pro-
position doubted that a party is not to suffer in person or in purse without an
opportunity of being heard. As to the other point, the attempt of the de-
fendants to justify under Webb v. Batchelour, that was the case of an officer ex-
ecuting process or a warrant. I think that that case bears no analogy to the
present. The reason of that decision is plain enough. It would be wild
work if the officer were entitled to scan the warrant delivered to him, for the
purpose of ascertaining whether it was regular or not, under the particular
circumstances of each individual case. But here the persons justifying are
not officers acting under the warrant, but are parties who allege that money
(a) 1 Ventr. 273 j Freeoi. 396, 407, 467, (b) 6 Tenn Rep. 198.
488.
Paintbe
V.
TRINITY TERM, 1836. 241
was due to them, and that the warrant was executed under their authority K'mg't Bench,
for the purpose of satisfying their demand. There is therefore no analogy
between this case and that of an officer, on which supposed analogy the argu-
ment of the defendants* counsel from first to last did absolutely depend. The Liverpool
Oil Gas Light
Lord Denman, C. J. added, — I should wish to mention Harper v. Carr (o),
where Lord Kenyon said, " It is an essential rule in the administration of justice,
that no man shall be punished without being heard in his defence ; the party
must be summoned before a warrant of distress is granted, as we decided in
Rex V. Benn^ and on that summons many circumstances may appear to show
that a warrant of distress ought not to be granted.*' It is clear therefore
that he had a strong opinion on this point.
Judgment for plaintiff.
(a) 7 Tcnn Reports, 275.
Williams v. Gibbs.
A CTION on the case, for negligence as an attorney. Declaration stated. Evidence of «
that the defendant was retained by the plaintiff as his attorney to sue m7di**iiaii^th«
one David Edwards, for the sum of 39*. llrf., but that defendant did not, juri»dicUonof»
nor would prosecute, conduct, or manage the said business and employment ^ulne uiffieient*to
with due and proper care, skill, and diligence ; but, on the contrary thereof, n»«inuin«n»ction
the defendant afterwards, to wit, on the ^Oth day of /August, 1833, wrong- deUv«r«d ther^
fully and knowingly commenced and prosecuted a certain action for the Evidence of the
* , , coDsidf ration on
recovery of the said sum of 39«. lie/., in the name of the plaintiff, against the which th^i pro-
said David Edwards, in a certain court which had no jurisdiction over the said al^JiliUjJJ^iyen.
debt or cause of action, to wit, the court of the manor of Gotrer, the said if an attorney
debt having arisen out of the jurisdiction of the said court of the manor of wiSin acourt^of
Gower, as defendant then well knew; and such proceedings were thereupon limited jurbdic-
had in said court, that aflerwards, to wit, on 3d day of December, 1833, in UMTcireonMUnci
consequence of the negligent and improper conduct of defendant, the plaintiff ^WchgaveUie
was forced and obliged to have, and then had, judgment of nonsuit signed arose ont of Uie
against him, and was then nonsuited in said court, whereby said action became ^^It^^heis
and was rendered wholly abortive and of no effect. Pleas: — 1st. The general riUty of negu-
issue. 2nd. That plaintiff was not, in consequence of the negligent and **iiJiiieg»uon in
improper conduct of defendant, forced and obliged to have, nor did he have, « declaration, that
judgment of nonsuit signed against him, nor was he nonsuited in said court. TOuuUcd in*!arh
The cause was tried before Mr. Justice Williams at the Spring Assizes, an action, is wp.
1835, for the county of Glamorgan^ when it appeared that the plaintiff uint in a case
was a victualler at Swansea, the defendant an attorney there. In or J^i?*^^" j^J*.
about the month of April, 1833, an action upon promises was brought pending on the
in the baron court, for the manor of Gower, by the defendant Gibbs, ""JJ^^""p,,i„,
as the attorney for and on behalf of the plaintiff, John Williams, against tiff was nonsuited,
one David Edwards, to recover the sum of 1 7*. for goods &c. sold in Sroan- JJlxjld'Use^wM*
»ea, the promise to pay having been made within the jurisdiction of the called the judge
court of Gawer, On the 22d of October following, a declaration was filed in .fjouid do^and to
that court in the action of Williams v. Edwards, and subsequent to that date !*^* e«p«n»e iho
' * jury was not
sworn, but the
clerk of the court entered a judgment as in cast of a nonsuit in his books.
VOL. II. R
242
TERM REPORTS in the KING'S BENCH.
Williams
V.
GiBBB.
Kipg*s Bench, Mr. John Dames, the attorney for Edwards^ agreed to put such cause at issue
and to try the same on 8rd December, 1833, being the next Court-day afler
such agreement ; and, accordingly, Gihbs gave notice of trial for that day.
When the list of the jury was handed to the proper officer to call the cause
on and swear the jury, it was ascertained that there was not any plea on the
file, and it was objected, on the part of the plaintiff, that the trial could not
proceed without a plea being delivered, but the defendant proved that the
plea had been \eh by his clerk at the office of the steward of the court for
him to file, and the steward swore the clerk to that fact, and then said,
that enough had been done by the practice of that court to permit him to
proceed with the cause. The plaintiff's attorney, the present defendant,
however refused to try, as there was not any plea on the file. There was a
case just before it in the list which had already been tried, and in which the
plaintiffs had been nonsuited on account of the action having been brought
in the manor court of Gower, when the cause of action arose in Svmnsea. As
the same objection existed in the case in which Williams was plaintiff and
Edwards defendant, the steward said that he should nonsuit in the same
manner if that case was brought on, and he therefore recommended, that to
save expense the jury should not be sworn. The attorney for EdvMrds then
moved for judgment as in case of a nonsuit, which was objected to; and it
was stated to him, that if he moved for any thing, it should be for costs for
not proceeding to trial according to notice, which he accordingly did ; but
the entry of the motion was afterwards made as for ** a judgment as in case
of a nonsuit'' for not proceeding to trial. At the trial of the present cause
evidence of these facts having been given^ many objections were taken to
the right of the plaintiff to recover. Among the rest it was said, that
this action being an action on the case for damages for want of skill, the
plaintiff was bound to prove every part of the declaration, the retainer,
the proceedings in the action in the manor court, that such manor court
had no jurisdiction, and that plaintiff was forced and obliged to have, and
did have, judgment of nonsuit legally signed against him in such action,
and also that it was occasioned by the negligence of his attorney, the
defendant in this action ; it was contended, that the action in the manor
court was never put at issue, by reason of the defendant David Edzoards not
having pleaded^ and therefore the cause could not be tried for want of an
issue ; that no judgment as in case of a nonsuit could be signed by the de-
fendant until after issue joined, (see 14 Geo, 2, cap. 17 ;) and that by the
common law no judgment of nonsuit for not going to trial pursuant to notice
could be moved for in any court whatever, except in the courts specially
mentioned in that statute ; the common law knowing nothing of any such
judgment. The learned judge however did not adopt this view of the case,
but lef% it to the jury to say, first, whether the defendant knew the facts
on which he had brought the action in the court at Gower; and secondly,
whether, though the plaintiff might have instructed the attorney to bring
the action in that place, the attorney ought not to have warned him of the
danger of a nonsuit from so doing. The jury found a verdict for the
plaintiff. A rule had since been obtained to set aside that verdict and
have a new trial.
F. WUliamtand Potve// showed cause. — The defendant here is clearly liable
to answer for negligence. The action was improperly brought in the manor
TRINITY TERM, 1836. 243
court of Stoansea, and Peacock v. Beil (a) shows, that unless it appear on the KingU Bench.
record that the cause of the promise arose within the inferior jurisdiction, v^v^i^
advantage may be taken of the omission on a writ of error. One objection Williams
here is, that there is a variance between the declaration and the proof, for Giras.
that the declaration alleges that the plaintiff had judgment o{ nonsuit signed
against him ; whereas, from the evidence of Mr. Thomas^ the steward^ it
appears that it was judgment as in case of a nonsuit. There is no such dis-
tinction between the two things as to form any variance. The definition of a
nonsuit is given by Lord Ellenborough, in Paxton v. Popham (6), in thesc^^erms :
" A nonsuit is a judgment against the plaintiff for not appearing on a day
when he is demanded." The plaintiff here falls within that definition, for he
did not appear when demanded in the court at Swansea. There is therefore
no variance. Besides, this is an action of tort. In tort, the substance of the
declaration must be proved, not the letter of it, as in contract. There are
many cases which show that a statement such as this, is merely matter of in-
ducement, and if so, it need not be exactly proved. Purceli v. Macnamara (c),
Phillips V. Shaw(d)t Stoddart v. Palmer {e), and Judge v. Morgan (f). The
declaration was sufficiently supported by the proof, and that proof showed a
case of gross negligence on the part of this defendant. There had been an
objection made in the court baron, on the ground that no plea had been pro-
perly filed, but the steward held that that objection was untenable, and directed
the case to proceed ; and it was then found that the cause of action arose out
of the jurisdiction, and therefore the action could not be sustained ; the
plaintiff was consequently nonsuited. That nonsuit arose from the negligence
of this defendant, who was, as the jury found, aware, before he brought the
action, of the circumstance on which the nonsuit afterwards proceeded.
J. Evans and Nichol, in support of the rule. — The judgment in the court
baron is altogether incapable of being supported. The steward suffered the
case to proceed to trial on a plea, the contents of which he did not know.
The declaration in the present case does not sufficiently set forth a cause of
action. It states a train of facts, with a view to show that a judgment of
nonsuit was recorded in the former action ; the plea traverses those focts,
denying that the plaintiff, in consequence of the negligent conduct of the
defendant, had judgment signed against him. The plaintiff was not and
could not be nonsuited in the court baron of Goxoer. Judgment of nonsuit,
and judgment as in case of a nonsuit, are different things ; and there are cases
which show that a variance by the statement of one for the other is material.
In Edwards v. Lucas (g) a variance of a similar sort, in an action against a
sheriff, was held fatal. In this case no issue was joined in the baron court,
and no jury was sworn. Now, till issue is joined, and till a jury is sworn,
there cannot be a nonsuit; Heath v. Walker {h). There no issue was made
up, and when the jury was about to be sworn, the Chief Justice dismissed the
jurymen, and said, that as no issue was made up he could neither call the
plaintiff nor suffer the defendant to take a verdict. The other side cannot
deny that there was enough on the face of the record in this case to show
SI Wms. Saund. 73. (a) 3 Bam. & Crest. 3.
10 F4Mt. 366. (/) 13 fast, 647.
(«) 9 £ast, 157. h) 6 Bam. & Crass. 339.
Id) 4 Bam. & A Id. 435. (A) 2 Str. 1117.
r2
244
TERM REPORTS in the KING'S BENCH.
Williams
V,
GiBB&i
King** Bench, that the promise was within the jurisdiction. It is not necessary, in order
to show that) for the plaintiff to prove that the items of the account accrued
within the jurisdiction. It is sufficient if the account stated was so.
Emery v. Bartlett (a), Whitthead v. Brown {b). The answer to this action is
sufficient on the plea of not guilty. That plea must, under the new rules,
put the wrong and the cause of it at issue ; Thomas v. Morgan (c). There
a plea of not guilty was held to put the scienter as to the mischievousness of
animals in issue. The plaintiff therefore has not shown enough to establish
his right to maintain this action. The defendant sued in a Court which ap-
peared to have full jurisdiction. The whole of the proceedings in the court
baron ought to have been shown in this case (c/), and then it would have
appeared that the fault was that of the steward alone, and that his judgment
could not be maintained. It ought to have been proved that Swansea was
beyond the jurisdiction of the court baron of Gower ; Fisher v. Lane {e). For
this Court cannot take judicial notice of the limits of the jurisdiction of an
inferior court ; Moravia v. Sioper (f). Gross negligence cannot be imputed
in this case. Doorman v. Jenkins (g) shows what gross negligence is. A
mistake in point of practice as to the effect of the delivery of an account
stated^ is not gross negligence. In a case of this sort, reasonableness
belongs to a knowledge of the law, and is to be decided by the justices {h).
The jury ought to have been told that no substantive negligence was proved
against this defendant. The promise was proved to be within the jurisdic-
tion, and that is sufficient in these courts in Wafcs,
Lord Denman, C. J. — This rule has been obtained — first, because it is
said that the jury ought to have been told that no substantive negligence
was proved against the attorney, for that he sued in a court in which, for
aught that appeared, he might properly sue and recover the debt ; and that
the ill success of the suit was the mistake of the steward ; and secondly, that
there is no particular mode of injury stated on the declaration, as the plaintiff
was not and could not be nonsuited. It appears to me that there was evidence
of misconduct on the part of the attorney himself, for bringing an action in a
court wliich had not jurisdiction over the subject-matter. Although the
cases in Strange and in Lord Raymond say, that to maintain the action within
the particular jurisdiction, the settlement of account is enough, without proof
of the particular items, for that the account stated is the consideration for
the promise, and there needs nothing else to maintain the action, still, it
seems to me that the promise to pay is only an inference, a result of law
amounting to an acknowledgment that there was an existing debt, but not
amounting to a statement that it was within the jurisdiction. With respect
to whether there was any issue joined, that is a matter of evidence, not of
law, and there was evidence here to show, that, according to the practice of
the court baron of Goicer^ there was an issue joined on the pleadings. It is
true that the jury was not sworn, after the opinion of the steward had been
expressed. That however was only with a view to save expense. The
swearing of the jury had nothing to do with the attorney who brought an ac-
tion in a court in which it could not lie. Tlie evidence was sufficient to
(a) 2 Lord Rayra. 1555 ; 2 Str. 827.
(6) 1 Lev. 96.
(c) 1 Gale, 172 ; 4 Dowl. P. C.223.
(rf) Phill.onEvid.390.
(c) 2 Sir W. Bl. 834.
(/) Willes, 30.
U) 2 Ad. & El. 256.
{h) Co. Lilt. 66 b.
TRINITY TERM, 1836. 245
show that the cause of action was in itself a right one, if that action had been King^t Bench.
properly brought. The argument whether it was a nonsuit, or a judgment >^^>n^
in case of a nonsuit, is not to be considered. I think, in fact, that there was Williams
a nonsuit, as the party admitted the fact, on which, if the jury had been Gibus.
sworn, and the case fully discussed, there must at last have been a nonsuit.
LiTTLEDALE, J. — Where two parties meet together and settle their ac-
counts, so that there is a distinct claim on the one hand and a distinct settle-
ment on the other, it is not necessary to show that some or all of the items
of an account so settled arose within the jurisdiction of the inferior court.
But it is sufficient to show that the account was settled, and the promise to
pay upon such settled account made within the jurisdiction. I'he settle-
ment of the account within the jurisdiction would be sufficient as a cause
of action, and the proceedings in the court baron would be right. The
doubt I have is, whether here the promise to pay can be considered
as evidence of an account so stated. A mere promise would not be
sufficient for any purpose, there must be something which takes place from
which it might be inferred that this promise referred to some other thing.
Where the place in which the two parties met, and what passed between
them^ are known, and where their conversation is followed up by a promise
to pay, the action might be well brought within the inferior jurisdiction within
which such promise was made ; but a mere promise to pay would not enable
the party to sue, though proved to have been made within the jurisdiction.
If the present defendant did not prove his client's case by other evidence
than that, it would be for the jury to say whether he was not guilty of such
negligence as would in fact enable the client to sustain this action. With
respect to the rest of the case as to the delivery of the plea, it does not
appear to me to be material in this case. There had been a nonsuit in a
previous case, for the very same objection which existed in this ; and the party
here was substantially compelled to submit to a nonsuit, and the form of the
trial was spared only with a view to save expense. If the jury here thought
that in fact there had been negligence, I think that their finding can be well
supported.
Patteson, J. — There are two issues in this case: first, whether the de-
fendant, by pleading the general issue, can be taken to deny the negligence,
as alleged in the declaration; and secondly, whether there was a judgment
of nonsuit. With respect to the first, that raises this question, whether or
not the action in the court baron of Gcfwer could properly be maintained
there. It is said, that it might, for that the form of concessit solvere is general
in Wales, and that it need not appear that the matters on which the promise
was made were within the jurisdiction. It may be so in some Welsh jurisdic-
tion, as for instance, it is sufficient in the Court of Great Sessions there. That
appears by the note to the case in I Wms, Saunders (a). But it must appear
that such promise was founded on some consideration. There must there-
fore be evidence to show consideration, and that must be within the jurisdic-
tion. The case in Lord Raymond (b) shows that the account stated was the
consideration there, and that was sufficient there without showing that all the
items of that account arose within the jurisdiction. I do not understand
that this was admitted in the present case, though the promise itself was
(a) Peacock v. Bell, 1 Wms Saund. 73. (h) Emery v. BarUeU,2 Lord Raym. 1656.
246 TERM REPORTS in thb KING'S BENCH.
King*t Bmch, admitted. Suppose a witness was to say, I saw the plaintiff and defendant,
v^v^ and the defendant promised to pay 201. The defendant must admit that he
Williams owed the money before he promised to pay it ; for the mere promise, without
G1BB8. more, would be a nudum pactum^ and no action could be maintained on it in a
court of law. Then the question is, whether there was a nonsuit. There
were two actions by different persons against the same defendant, and these
actions came on together, and it was then objected that there was not a plea
in either of them. There was then a discussion whether there was a plea or
not. It was not distinctly proved where this plea was, or what its contents
were. Then a witness was called and said, that there was a plea delivered
in each action, though the officer of the court had omitted to file it. Then
the steward, who was the judge of the court, said that he was satisfied that
there was a plea, so as to enable him to proceed with the trial. That ruling
applied to both cases, for they discussed both at the same time. They did
not show what the plea in Jones v. Edwards was, but they had evidence
which showed that the cause of action arose out of the jurisdiction, and the
plaintiff there was nonsuited. Then this case was called on, and it was said
that it was for the same cause of action arising out of the same circumstances.
Then there was a consultation with the advocate, who said, that there was no
use in going on after the first case had been disposed of. It is now sworn
that the present defendant thereupon agreed to be nonsuited ; but the facts
speak for themselves in that respect. The steward said that it was unneces-
sary to swear the jury, as that would be an additional expense, and judgment
as in case of a nonsuit was given. That judgment, it is said, was not known
there ; and it is contended, that the court had no right to give it, but the
court could give a judgment of nonsuit. The entry might have been altered
aAerwards, but that is of no moment, for the other facts explain all. I think
the verdict right, and that it should not be disturbed.
Williams, J. — I fully agree with the rest of the Court. In the first case,
afler deciding the question of plea pleaded, the jury was sworn upon the evi-
dence, and therefore there was a nonsuit in form and substance. If the jury
had been sworn in the second case, the same thing would have taken place, for
the same objection would have arisen, and must have been disposed of in
the same manner. Then there would have been another nonsuit in form and
substance ; but instead of that, the attorney for the defendant in the second
action asked whether it would not be a waste of the time of the court to
proceed further, and with a view of saving time and expense another course
was adopted. Whatever was the form of that proceeding it was in substance
a nonsuit. The officer of the court said that the plea was sufficient, and
there was therefore evidence of an issue joined. Then as to the evidence,
there was nothing more than a mere promise to pay proved, and that was
not sufficient to maintain the action in the court at Swansea.
Kule discharged.
TRINITY TERM, 1836.
247
King*s B4nck,
Rex v. The Commissioners of Customs.
W JERVIS had obtained a rule for a mandamus, calling on the defendants where imported
%#• 1 1. «, twr-tt' ^ m t • *. 1 good* were ukfii
to deliver up to a Mr. frtlliam George Blake a quantity of tobacco, (XMi^uion of hy
alleged to beloncr to him, and to have been improperly detained by them. c«»to'n[>ou»e offi-
° .. r r J J ^ cen,anii Che owner
The affidavits on which the rule was obtained, stated, that the tobacco, on its eUtmrd them
importation into London, had been placed in one of the bonding warehouses. "I^.^'^'^^i^
It was afterwards determined to send it to Londonderry, and the importer exe- duty, as Rood*
cuted the usual bond for the payment of the duty on the arrival of the tobacco ^enl^thoug?*
at that place. It was put on board a vessel called the Sarah, which was that datj bad
wrecked at Torbay ; but a large part of the tobacco, about nineteen hogs- treuuo^.refMed^
heads, had been saved, and the custom-house officers took possession of it ^ deliver them
and lodged it in the king's warehouse there. The owner paid into the trea- mentoTuieTuli*^'
sury as much money as he deemed would cover the amount of duty (51, per importation dutj :
If V . 1.1111 1 ^ 11 1. J /f««, that this
cent, ad valorem) on tobacco which had been wrecked, and then applied to Court would not
the commissioners of the customs to have the tobacco delivered to him, as he f**"'*' ...
' tocompelibecom*
contended, that under the 3 & 4 Will, 4, c. 5Z, s. 50, the tobacco thus saved mu»ionenofcu»-
from wreck, was subject only to the duty on unenumerated goods. The JSeg^t^blTieft
custom-house officers, in obedience to the orders of the commissioners of the petty to pur-
customs, refused to give up the tobacco, except upon the payment of the "Sjt gJodrwere^
ordinary duty on imported tobacco. wrongfully do-
The Aitomey-General showed cause against the rule. — The owner here,
even if entitled to have the tobacco, has not adopted the proper means to
assert his right. He may bring trover for the tobacco — and it is not clear
that he could not maintain replevin. In Selwyn*s Nisi Prius(a), it is stated
generally, that replevin may be brought in any case where a man has had his
goods unlawfully taken from him. But it is clear here, that Mr. Blake is not
entitled to have this tobacco on the payment of less than the ordinary duty.
That question depends on the construction of the 50th section of the 3 & 4
fVill, 4, c. 52 (b). This tobacco was not " wreck" within the meaning of
that term as used in the statute. The whole context of the 50th section
shows, that wreck in the statute means ureckum maris, where no owner ap-
pears to claim the goods, and where the goods are very considerably damaged.
If they are saved, as they were here, from the sea, and if an owner appears,
then they do not fall within the provisions of the statute. Goods saved
under such circumstances, are subject to duty, for the provision at the end
of the section speaks only of such goods as cannot be sold for the amount of
(o) Page 11 7«.
(b) By which it is enacted, '' That all fo-
reigD goods derelict, jestam, flotsam and wreck,
brought or coming into the United Kingdom,
or into the Isle of Many shall at all times be
subject to the same duties as goods of the like
kind imported into the United Kingdom re-
spectively are subject to. Provided always,
that if, for ascertaining the proper amount of
duty so |MiyabIe, any question shall arise as to
the origin of any such goods, the same shall
be deemed to be of the growth, produce, or
manafacture of such country or place as the
eommissioners of his Majesty's customs shall
upon investigation by them determine. Pro-
vided also, t£at if any such goods be of such
soru as are entitled to allowance for damage,
such allowance shall be made under such re-
gulations and conditions as the said commis-
sioners shall from time to time direct. Pro-
vided that all such goods as cannot be sold
for the amount of duty due thereon, shall be
delivered over to the lord of the manor or
other person entitled to receive the same, and
shall be deemed to be unenumerated goods,
and shall be liable to and shall be charged
with duty accordingly."
248 TERM REPORTS in the KING'S BENCH.
King*t Bench, duty due thereon, so that if they are not damaged to that extent, they do not
^^^>r^^ fall within the provision, and cannot be treated as unenumerated goods. He
The Kino ^^8 Stopped.
The COMMIS- r r ' ' i»iiin i ..,
8IONSR8 OP «'• J^rvUf in support of the rule. — Trover cannot be maintained, for the
CcsTOMft. tobacco is in the hands of the king. — [^LUliedaiey J. — Then this would be a
mandamus to the king, which cannot be issued.] — Goods may be in the king's
hands for one purpose and not for another. They are so here sufficiently to
prevent the plaintiff from bringing trover. — [Lord Denman^ C. J. — The
tobacco is under the control of the king's officers. This Court is not to be
told that the king's officers are not subject to an action. Such an action may
be maintained for unlawfully taking the goods, or, if you have paid the duty,
for detaining them.] — Such an action could not be maintained against the
comptroller, for he was bound to take the goods to the king's warehouse.
Against whom then could it lie ? Certainly not against the commissioners of
customs, for doing what they are bound to do in order to secure the receipt
of the duty. The officers here are only guilty of a mere non feasance^ and
that is not sufficient to maintain trover. Neither could an action be brought
as for a breach of duty in not delivering up, for it is not the duty of any par-
ticular officer to deliver the goods. There is therefore no person against
whom the applicant could proceed. l*he party here has a legal right, but
has no legal remedy. In such a case this Court will exercise its prerogative
powers to put him in possession of his right. — [The Attorney-General sug-
gested, that Whitelegge v. Richards (a) showed, that where an officer refused
to do that which in the discharge of a public duty he was bound to do, he
was answerable to a private individual who was injured thereby.] — That case
does not at all apply to the present. The defendant there was an officer of
the Insolvent Debtors' Court, and the case was not argued nor decided on
the point for which it is now cited.
Lord Denman, C. J. — This rule must be discharged. If the commis-
sioners are justified in what they have done, we cannot interfere by manda*
mus. If they are not, if they have acted without authority, the party now
applying has his remedy by action.
LiTTLEDALE, J. — ^This is in effect an application for a mandamus to the
crown. There is no precedent for such an application. Some time ago there
was a mandamus granted to certain officers of the treasury to pay over cer-
tain monies which they held in their hands ; but then they did not claim any
title to retain those monies which they admitted they had received on be-
half of the applicant. That case^ therefore, is not in point for the purposes
of this application. *
Patteson, J. — The applicant here states in his affidavit, that he has paid
over to the treasury all the money that the customs are entitled to receive.
The next step he has to take, is to require the documents which will put
him into possession of the tobacco. If those are refused, he must proceed
by action. We cannot assist him in the way now prayed.
Williams, J. concurred.
Rule discharged.
(fl) 3 lirod. 1^ Bing. 188 ; 2 Barn. 6c Cres. 45, 6. C. in error.
TRINITY TERM, 1836. 249
King's Btneh*
Shearvvood V. Hay. v^v^
TNDEBITATUS ASSUMPSIT for medicines, attendance, and journeys, in an »cUoo to
supplied and performed by the plaintiff as a surgeon and apothecary. ^n*iI[M"e*wy't
Plea — General issue. The cause was tried before the under-sheriff of lAn* bin. the proof re-
cotnshire, when the plaintiff was called on to prove himself to be an apothe- JTte 55 o. s^c.**
cary within the terms of the 55 Geo. 3, c. 194, s. 21 (6). The plaintiff was i9*» •• «i, that the
not prepared with this proof, and was therefore nonsuited. A rule had apothecary, u a
been obtained, calling on the defendant to show cause why the nonsuit condiUoD pro<»-
should not be set aside and a new trial granted, on the ground that, since the to recover. He
new rules, the defendant, if he meant to rely on the incapacity of the plaintiff ""•^^•"fo"
to maintain the action^ was bound specially to plead it, and could not go into aitboa«b the de-
that defence under the general issue. pl"i**on the"*rJJ^'rd
anjr special plea
Whitehurst showed cause. — The defendant had a right to prove this de- found«* on that
fence under the general issue : Morgan v. Ruddock (c). The new rules can-
not affect this question : the judges' orders cannot repeal the positive provi-
sions of a statute. The object of the Apothecary's Act was similar to that of
the Stamp Acts. It was to compel parties to comply with the provisions of a
statute, and to protect the revenue — and this object cannot be indirectly de-
feated by the framing of new rules of pleading. But it is denied that the new
rules apply to a case like the present. Edmund v. Harris (d ) has been over-
ruled in a case of GrouncUell v. Lamb, tried before Lord Abinger at Lincoln.
His lordship said that the decision in that case had been much considered and
questioned among the judges. In Gardner v. Alexander {e), it was held by
the Court of Common Pleas, that under the general issue to a declaration in
the common form for goods bargained and sold, evidence of a special contract
might be given ; and in a case of Bloomfield v. Smith, recently moved in the
Exchequer, the Court said that the general rule on this subject must be con-
sidered as laid down in Cousins v. Paddon (/), where it was held, that under a
plea of nunquam indebitatus, the defendant might show that the work was
done under a specific contract, and that that contract was not performed. In
Waddilate v. Bamett (g), it was held, that in assumpsit for use and occupa-
tion, the defendant might, under a plea of non assumpsit, show that he had re-
ceived notice to pay rent to a mortgagee.
Humfrey, in support of the rule. — The authority of the new rules which are
made under the provisions of a statute, is sufficient to act as a repeal of the
provisions of a former statute. A case has occurred this term in the Ex-
chequer, where the judges have effectually repealed the authority of a statute
of set-off. The Court of Exchequer has decided, that where the general
issue is pleaded, and it is intended to prove a set-off, such set-off must be
pleaded, and proof of it cannot be given under the general issue. — [Mr.
(a) See the Dole to the next case. p. 250. apothecary from the master, wardens, and so-
(6) By which it is enacted, that " no apo< ciety of apothecaries."
thecary shall be allowed to recover any charges (c) 1 Harr. & Wol. 505.
claimed by him in any court of law, unless (^) 2 Ad. &c Ell. 414.
such apothecary shall prove on the tital that (e) 3 Dowl P. C. 146.
he was in practice as uo apothecary prior to (/) I Gale, 305.
or on the 5th duy oi Augmt, 1815, or that he i^g) Hodges, 395; 2 Uing. \. C. 528.
has obtained a certificate to piactisc as an
SHEiiRWOOD
V.
250 TERM REPORTS in the KING'S BENCH.
King's Bench, Whitehurst explained the decision of the Court in the case referred to, as
being this — the Court said, that the statute h'mited the right of giving a set-
off in evidence, by requiring a notice which had not been necessary under the
Hay. common law.] — The statement in the declaration here is positive that the
plaintiff is an apothecary. If it was meant to contradict that statement and
put the plaintiff to prove that fact, tlie denial of it should have been specially
pleaded. The rule that a plea of non assumpsit shall operate only as a denial
in fact of the express contract or promise alleged, is strictly applicable to the
present case ; for here the defence attempted to be set up is not a denial in
fact of the contract or of the promise, but the assertion of something personal
to the plaintiff, which incapacitates him from enforcing the contract. This is
like the case of an attorney's bill, where the non-delivery of the bill being a
atatuteable defence, ought to be pleaded. It is an avoidance of the contract,
and therefore falls expressly within the terms of the new rules.
The Court postponed giving judgment in this case until the case of WiUis
v. Langridge had been argued.
Willis v. Langridge.
Nor (tew it make T\EBT to recover 5/. for work and labour as a surgeon and apothecary,
this retpect thiit with a couut for moucy had and received, and an account stated.
piwd^d ■**"ndir ^^®*^ — ^® ^® ^^^ several counU in the declaration, except as to 5s. 9rf.,
as to part of the parcel of the money in the first count of the said declaration mentioned,
fhouglfiiuch^piea* »«"'ywflin dcbuU ; secondly, a set-off; and thirdly, as to the 5s. 9d. a tender,
b esprrasiy plead. The bill of particulars was for 2l, 2s. on the first count, and 11, Ss, 4i/., on
Uie deciwHuon ^^^ Others claimed as a balance due on the sale of a house. This cause was
where the wotk b tried before the sheriff o£ MiddieseXt when a verdict was found for the plain-
done, nod the tiff for the sum of 31. 7d., subject to a motion to reduce it to the sum of
Td't^uTe^'iilhltilr ^^'' ^^'* ^^ *^® Court should be of opinion, that on the pleadings, as they
as au apothecary, uow stood, the plaintiff was bouud in the first instance to prove that he was
A plea of teuder an apothccary. A rule having been obtained, pursuant to the leave reserved,
merely admits the
defendaut's liabi-
lity oo the con- Humfrey showed cause. — Whatever doubt may be entertained in the last
tendered. casc, there Can be none in this, for here the plea of tender admits, that so far
as the sum of 5s. 9d. is concerned, the plaintiff is an apothecary. It is a plea
to the first count of the declaration generally, and in that count the plaintiff
is described as an apothecary. If he is so to that extent, he is so to the ex-
tent of the whole bill. Tbe words of the statute are therefore admitted to be
satisfied in this case. ^
Waddingtofiy in support of the rule. — The plea of tender joined, with the
general issue, admits nothing but that the sum tendered is due ; Simpson v.
RoutA (a). The principle of that case is exactly applicable to the present.
There a distress had been levied upon the plaintiff, and her goods had been
sold to satisfy a demand for poor rates. There remained in the hands of the
defendants a surplus of 4/. Is., the defendants bad tendered 31. 14«. to the
(a) 2 Barn. 6c Cres. 682.
TRINITY TERM, 1836,
261
Willis
0.
Langridob.
plaintiff, who refused to accept it. He afterwards brought money had and King*s Bench.
received, and the defendants pleaded a tender of 3/. 14^., and paid that sum
into Court. It was objected, that under the 27 Geo. 2, the plaintiff could
not recover without first proving a demand before action brought, and the
Court held that that objection was well founded, and that the tender did not
make such demand unnecessary. In Seafon v. Benedict (a), where the question
was as to the authority given by a husband to his wife to contract debts, it
was held, that payment of a certain sum of money into Court, did not admit
more than the sum so paid in, and could apply only to legal demands. In
like manner payment of a certain sum, though paid in generally, does not take
a case out of the statute of limitations ; Long v. Greville (6) . The plaintiff here
might have been an apothecary when the 5s, 9d. became due, and not when the
rest of the debt was incurred. The plea of tender does not go further than this,
that it prevents the party pleading it from afterwards setting up any thing
that is inconsistent with it. — [Pattcson^ J. — There is a case in CampbeWs Re-
ports (c), where payment of money into Court was held to obviate such an
objection.] — That case must be taken to be overruled by Simpson v. Routh,
The being an apothecary is a condition precedent to the right to maintain this
action, and the plaintiff was therefore bound to prove that he bore that cha-
racter. The defendant cannot know whether the plaintiff is entitled to prac-
tise as an apothecary, and that distinguishes the present case from the case
of an attorney's bill, where it is in the defendant's own knowledge whether a
bill has been delivered or not, and where, if he means to rely on the non-de-
livery, he should give the plaintiff notice of that defence.
Lord Denmak, C. J. — The application in the first of these cases was to
set aside a nonsuit, which proceeded upon the ground of the plaintiff's having
failed to prove that he was an apothecary within the terms of the 55 Geo. S,
c. 194. The plaintiff having proved the delivery of the medicines, was called
upon by the under-sheriff to prove that he was an apothecary before he could
be allowed to recover the amount, the under-sheriff thinking that this
was part of his title to recover, which the statute made it imperative on
him to make out. I own that it appears to me that the under-sheriff was
right in the view which he took of the case. It is a case where a party is
called upon, by the provisions of a statute of public policy, to prove that, at
the time when the transaction took place, he filled a particular character. It
was a condition precedent on the part of the plaintiff to prove himself to have
been an apothecary, before he could place himself in a situation to recover.
The defendant could not have the means of knowing whether the plaintiff
filled that character or not; and if he had pleaded that the plaintiff was not
an apothecary, and had failed in his proof, he would have had to pay the
costs of that issue. That seems to me to make a clear distinction between
the case of an apothecary and of an attorney suing on his bill. In the latter
case the defendant must know whether a bill from the attorney had ever
been delivered to him, and it may be very reasonable that he should be
obliged to give the plaintiff notice that the ground of his defence was the non-
delivery of a bill one month before action brought. The provisions of the
(a) 2.Moor« & P. 66; and 5 Bing. 28.
{h) 3 Barn, k Cres. 10.
(r) Lipicomhe v. Holmes, 2 Cdmp. 441.
262 TERM REPORTS in the KING'S BENCH.
King^t Bench, ^D^ Geo. 2, are extremely different from an act of parliament, making it ne-
ws/«^ cessary that the plaintiff, as a condition precedent to entitle himself to recover,
Willis shall show that he filled a particular character. In the second of these cases
Lanoridoe. ^^^ same question arises, with this difference, however, that there is one count
in which the plaintiff says that the defendant was indebted to him for goods
sold, and work and labour as an apothecery, and to this count the defendant
had pleaded a tender of 58. 9d. ; and it is said that having dealt with the plain-
tiff as an apothecary, and pleaded a tender to him in that character^ it is an
admission upon the record that he was an apothecary. I do not however
think that this plea makes the difference which is supposed. It is too much
to say, that a person who deals with another in the character of an apothecary,
is by that circumstance prevented from requiring him to show that he really
holds that character. The new rules do not apply to cases of this sort. The
clause on which I am proceeding, does not say that the contract shall be
void ; but that the party shall not recover upon it unless he shows that he
comes within the provisions of the statute. The plaintiff in each of these
cases has failed to show that he fills that character in which alone the law
permits him to recover. In the first of these cases, therefore, the rule for
setting aside the nonsuit will be discharged, and in the other the rule for
reducing the damages will be made absolute.
LiTTLEDALE, J. — I am entirely of the same opinion. The new rules do
not apply to a case of this kind. It is true that they say, that when a man
wishes to avoid a contract by matter of law, he must plead it ; but here the
contract itself must first be set up. There is a case of Hodgson v. Taylor
[Qu. Hodgson v. Armstrong'] now depending in this Court, and involving a
principle very much like the present. The contract here is not prohibited by
the statute, but the statute requires that the plaintiff should show that he
filled a particular character before he is allowed to recover on the contract.
There is no doubt that a defendant would have to plead any special matter
which avoids the contract in point of law. Here the provision of the act
contains nothing to avoid the contract as between the parties. There is
nothing in the contract itself against the general policy of the law. It affects
the character of the plaintiff himself, and prevents him from recovering un-
less he can prove that he filled that character at the time when he assumed
to act as an apothecary. It is impossible for the defendant to know whether
the plaintiff filled that character or not, and he is therefore precluded from
setting up the defence that the plaintiff was not an apothecary. Where an
act of parliament has positively prohibited any thing from being done, the
new rules cannot abrogate the provisions of the act : but that is not the case
here. The nonsuit therefore in Shearwood v. Hay was right. With regard
to the other case of Willis v. Langridge, the plea of tender docs not at all
admit that the character of the plaintiff was such as the statute requires him
to prove it to be before he can recover.
Patteson, J. — These cases seem to have been brought before the Court
for the purpose of reviewing my decision in Morgan v. Ruddock. I came to
that decision after great consideration, and I own that no reasons have been
urged to induce me to retract any thing which I there expressed. From the
words of this particular statute, I think that the plaintiff is bound to prove
TRINITY TERM, 183G. 253
that he is an apothecary, entitled under the words of the statute to maintain King's Bench.
this action. What are those words ? that *' unless such apothecary shall >^\^^^
prove, &c.** 1 cannot get rid of these words, which throw the affirmation of Willis
proof on him as a condition precedent to his recovery. With respect to the Lanoridoe.
point arising in the second case on the plea of tender, I do not think that it
admits a contract beyond the amount of the sum tendered : Reid v. Dickons(a)t
is an authority in point. In that case Lord Denman said, " the payment of
money into Court merely admits the defendant's liability on the contract to
the amount paid in.*' And Mr. Justice Parke added, ** but beyond that sum
every defence is open to him." So here every other defence was open with
respect to every other sum, except that which is admitted on the record to
be due.
Williams, J.~I think that the under-sheriff, in the first case, was right.
Where I find a statute expressly requiring something to be done, and the words
of that statute are, as they are here, clear beyond all doubt, I shall require
something extremely cogent to satisfy me that the new rules dispense with
the proof of the thing thus required. As to the last case, I do not think that
the plea of tender gets rid of the necessity of proving that which the statute
has so clearly required to be proved.
Rule for a nonsuit in Sheaiwood v. Hay, discharged.
Rule for reducing the damages in Willis v. Langridge, absolute.
(a) 5 Uarn. k Ad. 499.
Rex v. St. James, Westminster.
'HIS was a rule for a mandamus to be issued to the inhabitants of St. where an act of
James, IVestmiiisier, commanding them to assemble and proceed to the pwH«neut created
election of churchwardens. The object of the application was to take the a^i^Son of ano-
opinion of the Court on the question, whether this parish was to adopt the "*•'» ■"** directed
new mode of electing parish officers now practised in St. Martin s, or was to of oflkersin the
continue the mode in which it had hitherto been accustomed to make the w parish »houid
election. The affidavits stated, that by the 1 James 2, c. 22(6), the parish adopted in the old
of St, James was carved out of the parish of St. Martins, and by that act it SJJj*di~^^'o^*'
was directed that the vestry of St. James should be appointed in the manner applied to Uie
in which the vestry of St. Martin's was appointed. Within these few years S^*fpJi^u^"in
there had been a complete change in the mode of appointing the vestry of the old parish^
St. Martins, which was now elected by the inhabitants at large ; and the JUjde w«» imV
question was, whether, as of course, that change was to be adopted in ■ftwwardsde-
c.. f » • u «»"*^ ^' »>• "-
bt. James S parish . leg,l, .nd another
•nbstituted for
The Attorney-General, on an early day in the term, applied that the present ^^ ^ **•"
churchwardens might be admitted to show cause against the rule. Since boaod to adopt
the rule had been granted, the new churchwardens had been sworn in, and ^^*"***'*^"'***
their only wish was to take the opinion of the Court on the construction of it Mems, Uiat in
1 ^ ^ a case where a
the Statute. pariah b con-
(b) Private Act. cerned. if a rule
is obtained while
certain persons are in office, but is not discussed till their time of office has passed, and other persons have
been eirctfd and sworn iu« this Court will malie the new officers parties to the ruie^ u> enable tliem to
show cause against it.
254 TERM REPORTS in the KING'S BENCH.
KingU Bench. ^^^ ^^* ^^* ^olUtt, On the part of the inhabitants, did not oppose the ap-
plication, and
The Kino
St. James. ^he Court granted it.
Westminster.
The AttotTiey-Generalf and John Jervis, afterwards showed cause against
the rule. The words of the statute of James are clearly opposed to the
granting of this mandamus. That statute speaks of the election of the vestry
as to be made according to the practice **now" in force in St, Martinis, No
change in the mode of electing the vestry was then contemplated in that
parish, but, at all events, it never was intended that the parish of St. James
should follow all the alterations which in the course of time might be made
in the government of St, Martins. It was intended only that the parish of
St, James should adopt the practice then in force in St. Martinis. The
custom in St. Martinis was merely referred to for convenience, as enabling
the legislature to declare in one sentence what the whole mode of proceed-
ing in parish elections in St. James's ought to be.
Sir W. W. Foliettf in support of the rule. — ^The right of electing the vestry
is, at common law, in the inhabitants at large. The statute of James, by
referring to the then practice in St. Martins parish, took away that right ;
but when the practice in St. Martinis was altered by another statute, that
right was restored. The mode of election in St. Martins was adopted for
St, James*s, free from what was illegal in the parish of St. Martin's. It is
now proved by the result of proceedings in this Court, that the practice then
existing in that parish was an illegal practice, for a number of persons had
assumed in that parish an authority which by law they could not rightly
exercise. The example of St. Martin's was therefore wrongly copied at the
time by St. James's, and now that that wrong example has been corrected by
this Court, St, James s ought to adopt the legal practice which has been re-
established in St, Martins.
Cur, adv. vult.
Lord Denman, C. J.— We have looked into the act of the 1 James 2,
c. 22f passed for the purpose of creating this parish out of a portion of what
bad been St. Martin's parish. That act directs, that there shall be an election
of churchwardens, according to the previous course of practice in that parish.
The phrase used, which is *' according to the laws and statutes now in
force,'* is not entirely without doubt, but we think that the description must
be taken to apply to the course then in practice. If any change of the prac-
tice in one parish, according to that prevailing in the other, had been in-
tended, some reference must have been made to the mode in which the law
intended that change to operate in this parish upon a change taking place in
the parish of St. Martins. Such might have been superfluous if the altera-
tion bad been effected by act of parliament. If a new state of things was
intended to follow in St. James's whenever it took place in St. Martin's^ if it
bad been meant that the one was always to imitate the other, the legislature
could easily have stated such to be its meaning. But no such thing has
been done here, and there can be no doubt that no such change as that
TRINITY TERM, 1836. 255
which has now taken place in Si, Martinis ever entered into the minds of King*s Betich.
the legislators in the time o^ James the Second. w>v/^;
Rule discharged. The King
^T I A Iff VS
Rex v. John Marsh. Wibtminstib.
nnHE defendant was the occupier of three pieces of land, in respect of The Geofrai
which a poor-rate had been made upon him, signed by the church- d?n!cto thut*^
wardens and overseers of the poor of the tithing of Aikington^ in the parish commiwioner ap-
oi Berkeley. He appealed against the rate, but the sessions confirmed it, J^l"aS*indoVu"^
subject to the opinion of the Court on the following Case : — »ct shall, when
The whole question was, whether the three pieces of land are in the «* n"e bound^M
tithing of Alkington or in the parish of Leonard Stanley, Up to the 1 7th "^ »"J^ purLhes,
November ^ 1832, they had been rated to Alkington. Jnuuicu°gili
An act of 11 Geo. 4, c. 7 (a), passed for the inclosure o^ {inter alia) lands notice, under hu
in the parish of Leonard Stanley, and it recited the General Inclosure Act {b). to be affixed to
On the 17th November, 1832, the commissioners appointed under 11 ^ureh^^JrV*
Geo. 4, c. 7, made the following determination with reference to the boun- parishes, and
daries of the parish of Leonard Stanley and BerkeUy, which adjoined each Tfter mt^ngTi'*"
other. ^^c boundaries
** Whereas by an act passed, &c., ( 1 1 Geo. 4, c. 7,) I, the undersigned IcHptTo" u»er^
Daniel Trender, was appointed commissioner for carrying the same act into ^ *»* ^^^ " »t the
execution: and whereas disputes or doubts having arisen whether certain SnV^f Hie church-
old inclosures, called respectively the ** Ham," the ** Langett," and " Mot- '••f*'*'" or over,
ford," all of which are part of the estate of the Rev. Thomas Heberden, and of uie respeJuve
are in the occupation of John Marsh, as his tenant, are parcel of the parish 2?**^^' "®^
of Stanley, St, Leonardos, otherwise St. Leonard, Stanley, or of the parish of hamiets,or dis* '
Berkeley, I, the said D. T., in pursuance of the powers, and in compliance l^j^oner^ **"
with the provisions contained in the said act and the therein recited act, have pointed under a
ascertained the boundaries of the said parishes respectively where they ^rJ^^loiAcvtol
adjoin each other, and do hereby set out and determine and fix that the said hu intention to
inclosures respectively are parcel of the parish of Stanley, St. Leonardos, dets^offour"*^
otherwise 5/. Leonard, Stanley.'* "^^'f*' di*trictt
The sessions thought, that under the provisions of 41 Geo. 3, c. 109, s. 3, parish.^ '-nfese
it was necessary to have proof that the means of appeal had been afforded ^churchwardens
by a due service of the descriptions of boundaries, as therein provided, but separately b; the
that if this had been done, no appeal having ever taken place, they could not b^^'^^JJ **"^*^^»
now inquire by what means and through what steps the commissioner had swomtoactror
arrived at his decision, and they interrupted evidence which had been com- !l!!.'*T"*''' ^*
'^ ^"^ * ^ ^ commissioner
menced as to that point, particularly as to his having examined witnesses then asrert«ined
without oath, and as to the existence of disputes before his perambulation ^j ^^"° ^"^^*
commenced concerning the boundaries in question. With regard to the »cription thereof
r *i_ J • .* /» I- J • .• • ■**** * ">Py of his
proper services of the description of boundaries, a question arises upon determiuMtiontoa
these circumstances. Berkeley parish is divided into four tithings, viz. churchwarden of
Berkeley town, Alkington, Ham, and a fourth composed of Vinton, Ham-- which Uie parish
fallofw, and Ereadstowe. There is but one church, which is in Berkeley town, *^I*"***'jTI!if #
and one chapel of ease, which is in Ham, Each of the tithings has a separate that he bad suffi.
cientljr complied
(o) Private Act. (b) 41 G. 3, c 109. with the piori-
sions of the
statute; for though each district elected its owu churchwarden, yet each cburchwardrn must be taken to
be an officer for the whole parish.
The words of the statute having raised the difficulty* and the commissioner having acled with good faith,
the Court declared that it should require ve:y strong and convincing proof before it declared his act Invalid.
256 TERM REPORTS in the KING'S BENCH.
King*t Bench, poor-rate, and each manages its poor separately, and paupers are remoTed from
\^v^/ one tithing to another. Berkeley ^ Alk'wgton, and JIam have each one church-
The Kiwo warden and two overseers ; H'tnton and Hamf allow have an overseer each,
•-.'' and Breadsionjce two, and there is one churchwarden for the three. The
churchwardens for all are appointed at Berkeley; the following is the form
of the appointment : —
'' At a vestry meeting, held in the vestry-room of the parish church of
Berkeley^ this day of , the following persons were nominated as
proper persons to serve the offices of churchwardens for the town and
tithings for the year ensuing, viz. ; —
** A,^ B,, C, /)., E.y F.f G.f H,
** In the presence of us." (Here follow the signatures of the parishioners
assembled in vestry.)
The outgoing churchwarden generally nominates his successor for the
same tithing, but in case of a dispute, the inhabitants of one tithing do not
vote in the election of churchwarden of another. None are chosen church-
wardens of either of the tithings but such as are inhabitants of that particular
tithing. Berkeley church is repaired by church rates levied separately on the
tithings.
The description of boundaries was served 23d Norcember^ 1832, by the
commissioners duly as regarded the parish officers of St, Leonard, Stanley ,
and the lords of the manors, but not on any churchwarden or overseer in
respect of Alkington^ as distinct from the rest of the parish of Berkeley, It
was served on one Seaborne^ who had been duly elected churchwarden of
Berkeley town for the preceding year, but whose original year of office had
expired, and who continued to act in consequence of the person appointed
as his successor not having been sworn in.
The questions are, first, whether the Quarter Sessions ought to have
received evidence as to the steps taken by the commissioner, and the other
circumstances prior to his adjudication ; secondly, whether they were enti-
tled to require proof of the due service of the description of boundaries ;
thirdly, whether, if so, service on the churchwardens of Berkeley town was
sufficient ; fourthly, whether Seaborne could be considered as churchwarden.
The case was once argued upon the above statement, and after consul-
tation, the Court sent it back to be re-heard on the following four points,
viz.: —
1. Whether any custom prevailed respecting the churchwardens.
2. As to the precise form of the appointment.
3. As to the form of the oath of office.
4. Whether the churchwardens act out of their respective tithings.
And thereupon the following supplement was added to the case : —
1. By custom in the parish of Berkeley, divided as it is into the several
tithings, (as mentioned in the case) there are four churchwardens, the cus-
tomary mode of electing whom is as follows : — A notice is given in the parish
church that the churchwardens desire a meeting in the vestry on Easter
Tuesday, to choose churchwardens for the town and tithings for the year
ensuing. At the meeting held in pursuance of such notice, an inhabitant of
each tithing is separately proposed and nominated as the new churchwarden
for such tithing. The churchwarden for the tithing of Alkington is usually
TRINITY TERM, 1836.
267
The Kino
V,
Marsii.
nominated first in order, and afterwards the rest, one after another. It is Khif*g Bench.
customary for the outgoing churchwarden of each tithing to propose his suc-
cessor, and the person so proposed is usually nominated without opposition ;
but in case of opposition, then the successor is nominated by the majority of
the inhabitants then present of the tithing for which he is to serve, and in
this nomination the inhabitants of the other tithings never interfere. As far
as hving memory goes, each churchwarden has been an inhabitant of the
tithing for which he served.
2. Afler the nomination of the churchwardens as aforesaid, a minute
thereof is usually made in the form set out in the case for presentation to the
archdeacon at his annual visitation. No other minute or appointment is
made or delivered to any of the churchwardens.
3. They are all sworn in together at the archdeacon's visitation, the oath
administered being in the following form : —
'* You and each of you shall swear truly and faithfully to execute the
office of churchwarden within your parish, and according to the best of your
skill and knowledge present such things and persons as to your knowledge
are presentable by the laws ecclesiastical of this realm. So help you God
and the contents of this book.'*
4. No churchwarden ever acts out of the tithing for which he is appointed,
except the signing the presentment annually made to the archdeacon of the
state of repair of the church, and other presentable matters, which are signed
by all four churchwardens, can be so considered. There is no church-rate
made for the tithing of the town of Bcrhdey, but the church is repaired by
rales out of the other tithings. When a sum of money is required for other
expenses, towards which the church-rate is applicable, the parish clerk, who
is also vestry clerk, divides the amount required into three equal parts, and
makes a separate rate for each of the three other tithings for one-third,
although the extent and value of such tithings are not equal. Such rate is
allowed by the inhabitants of each of such tithings in vestry. The rate,
when collected, is paid to the vestry clerk, who keeps separate accounts for
each of the churchwardens, and such accounts are allowed by the inhabitants
of each of such tithings.
The Attorney 'General, and Greaves, in support of the order of sessions. —
This is a question upon the General Inclosure Act, 41 Geo, 3, c. 109,
s. 3 (a). It is clear that the order of the commissioner is invalid, and that
(a) Which is in the following terms : —
'* And whereas disputes may arise concerning
the boundaiies of parishes, manors, hamlets,
or districts to be divided and inclosed, and of
parishes, manors, hamlets, or districts ' ad-
joining thrreto :* be it therefore enacted, that
the commissioner or commissioners appointed
in or by virtue of any such (local) act, thall,
and he or they is and are hereby authorized
and required, by examination of witnesses
upon oath or affirmation, (which oath or af-
firmation any one of such commissioners is
hereby empowered to administer,) and by
such other legal ways and means as he or
they shall think proper, to inquire into the
VOL. II.
bonndaries of such several parishes, manors,
hamlets, or districts : provided always, that
such commissioner or commissioners (before
he or they proceed to ascertain and set out
the boundaries of such parishes, manors, ham-
lets, or districts,) shall, and he or they is and
are hereby required to give public notice by
writing, under his or their hands, to be affixed
on the most public doors of the churches of
such parishes, and also by advertisement, to
be inserted in some newspaper to be named
in such act, and also by writing, to be deli-
vered to or left at the late or usual places of
abode of the respective lords or atewards of
the lords of the manors in which the lands
258
TERM REPORTS in the KING'S BENCH.
The Kino
V.
Marsh.
Kifig*t Bench, the lands remain in Alkington ; the rate levied on them in that parish is
therefore good. Where a statute delegates a special authority to particular
persons affecting the property of individuals, the statute must be strictly pur-
sued, and what is done under it, must appear to be legal on the izce of the
proceedings ; Rex v. Croke (a). It is not so here ; the notice here was not
left with the churchwarden of a parish, but only of a district. It lies on the de-
fendant to shew that the power of the commissioner has been duly exercised,
and that the requisites of the statute have been fully complied with. No
such proof has been given. At all events it was open for the appellant to
shew, that every thing had not been duly done, yet the sessions stopped that
inquiry. Each district here has a separate churchwarden, and there ought
to have been a separate notice for each. Every thing shews that the rights
and powers of the officers of the different districts are to be separately exer-
cised. The form of Mr. Seaborne* s appointment is for the town and tithing,
not for the parish of Berkeley, There is a manifest distinction between the
two. He is churchwarden in, but not for the parish. There cannot be a
churchwarden for the parish, for each is only appointed to office by a part of
the parish. Rex v. Clifton {b) and Rex v. St, Margaret* s^ Leicester (c), shew
that the acts of overseers of townships are invalid. The service of notice on
a person who filled no other character is therefore bad, and the rate was
properly made.
W, J, Alexander and CrippSy contrd, — ^The commissioner here has done all
that lay in his power to comply with the provisions of the statute. Tlie per-
son served with the notice must be taken, under the circumstances of this
case, to be the churchwarden of the parish. The Court will construe the
general word " parishes," at the end of the section, as including the words
** manors, hamlets and districts" used in the preceding part. Such a con-
struction has been put upon the word " agreement," in the Statute of Frauds,
Saunders v. Wahejield{d)\ the same rule of construction must be adopted here.
Though each district separately appoints its own churchwarden, yet the oath
administered to every one of the churchwardens is, to execute the ofHce
*' within your parish,'* and in fact all the four sign the annual presentments
made to the archdeacon on the state of the church. Spitalfields v. Bromley (e),
which was afterwards cited and discussed in Rex v. Bishop Wearmouih (/),
distinctly shews that magistrates are not bound to notice the divisions of pa-
rishes into townships. In Ruddy, Morton (g) it was held, that having a distinct
overseer, and maintaining its own poor, was not sufficient to make a place a
distinct parish. The churchwarden of Berkeley is the proper person to be
served here, and he has been served. — \_Patteson, J. — The act says the church-
wardens and overseers.] — The commissioner is not bound to distinguish be-
tween them. The inhabitants of Alkington had no place where the notice
and grounds to be inclosed shall be situate,
and of such adjoining manor or manors, ten
days at least before the time of setting out
of such boundary, of his or their intention to
ascertain, set out, determine, and fix the same
respectively : and such commissioner or com-
missioners shall, within one month aftei his
or their ascertaininfr and setting out the same
boundaries, cause a description thereof in
writing to be delivered to or left at the places
of abode of one of the churchwardens or over*
seers of the poor of the respective parishes,
and also of such respective lords or stewards."
(a) Cowp.26.
(6) 2 £a9t, 168.
(c) 8 East, 332.
(d) 4 Barn. & Aid. 595.
(e) 18 Vin. Abr. tit. Removal, H. pi. 5.
(/) 5 Bam. & Ad. 946 and 951.
{g) 2SaIk.601.
The King
V,
TRINITY TERM, 1836. 259
could be given to them, as distinguished from the rest of the parish. They King*t Bench,
had not even a chapel in their district, but the inhabitants of Berkeley had a
church. There can be no churchwarden but of a parish ; a churchwarden,
therefore, though elected by a part of the parish, has authority for the whole Marsu.
of it. 1 he churchwarden is a corporation, and the goods of the church are
vested in him, and he has not merely possession of them, but a property in
them, Jackson v. Adams {a), — [^Paiteson^ J. — In Astle v, Thomas (fe), it was
held that the churchwarden of a part of the parish might bring an action
against his predecessor in that part of the parish for which he was specially
elected, without reference to the churchwardens of the other parts into
which the parish was divided.] — And Rex v. Nantwich (c) decided, that an
indenture of apprenticeship of a pauper was valid which had been executed
by the overseers of a parish that had no churchwardens or chapel wardens,
but that maintained its own poor separately, although neither of the church-
wardens of the parish at large, within which the township was situated, had
joined in the execution, It is said by Lord Hale, in Dawson v. Fofvle{d)^
that every parish had a right to choose its own churchwardens — none but
a parish can have churchwardens. The mere fact, therefore, of each of the
districts forming a parish-meeting in one vestry, and appointing its own
officers, is nothing : they are all officers of the parish at large. Each town-
ship and tithing is here the same as the parish of which it forms a part.
Cur, adv. vult.
Lord Denman, C. J., afterwards delivered the judgment of the Court.
Hie question in this case has arisen out of the ascertainment of the bounda-
ries between certain parts of the parish of Berkeley and the parish of Leonard
Stanley, in the county of Gloucester, under the third section of the General
Inclosure Act, 41 Geo. 3, c. 109 (e), by a commissioner acting under that act,
and an act of 11 Geo. 4, for the inclosure of the parish of Leonard Stanley,
and it seems to us that the difficulty which has arisen is not attributable to
any error or misconduct of that commissioner, but to the imperfection and
confusion of the General Inclosure Act itself.
It certainly would seem probable, that the settlement of boundaries would
be equally useful and necessary in the case of an inclosure taking place in a
parish divided into many districts, as where a parish consists of one undivided
district. And accordingly the earlier part of the third section recites that dis-
putes may arise respecting the boundaries of '* parishes, manors, hamlets or
districts'* about to be divided and inclosed, and for preventing or adjusting those
disputes, the commissioner, under the powers thereby conferred upon him, is
to settle the boundaries. Previously, however, to his executing this duty, he
is to give several very formal and public notices to attract and insure attention
to the manner of his performance of it. Subsequently to the commissioner's
settling the boundaries, he is required by the act to give a notice to *' one of
the churchwardens or overseers of the respective parishes," omitting entirely
any mention of the officers of the districts, and out of this omission the ques-
tion before us has arisen.
(a) I Hodgos. 339. and 2 Biiig. N^. C. 402. (d) Hardr. 378.
{h) 2 Barn. & Cress. 271. (e) The General Inclosure Act.
(c) 16 East, 228.
82
260 TERM REPORTS in the KING'S BENCH.
King*t Bench, In the parish of Berkeley there are four districts called tithings, each of
^'^'^^ which districts, according to the statement in the case, has, as far back as me-
„. mory goes, nominated a separate churchwarden, who, after his appointment.
Marsh. uniformly acts within and for his own district, " except signing the present-
ments made annually to the archdeacon of the state of the repair of the church,
with other presentable matters, which are signed by all the churchwardens.**
They are also sworn to execute the office of churchwarden ** within their
parish." An inclosure having taken place within the adjoining parish of
Leonard Stanley, the commissioner for settling boundaries had adjusted them
between that parish and the adjoining part of the parish of Berkeley which
lay in the tithing of Alkington, and in so doing had fixed certain lands, of
which the defendant is occupier, to be in the parish of Leonard Stanley ; and
the single question is, whether the act of the commissioner was invalid. If
it was so, then the lands would remain in Alhington, and the defendant would
be properly rated for then), otherwise not.
The sessions properly, as we think, refused to hear evidence as to the
giving, or the omission to give the preliminary notice, and reserved for us
the question, whether a notice served upon one Seaboime, who had been ap-
pointed churchwarden for the tithing of Berkeley, was a service upon a church-
warden of the parish of Berkeley,
It is said that there is no such person as a churchwarden of the parish of
Berkeley, If that objection be well founded, it follows, that it was impos-
sible for the commissioner to comply literally with the provisions of the sta-
tute, for it has been already noticed, that no officer of a district is therein
mentioned, and yet it cannot, we presume, be doubted, but that the case was
clearly within the contemplation and objects of the statute. It has been
urged, in furtherance of the objection, that the commissioner should have
served a notice upon an officer of each tithing, or at least upon the officer
of the tithing o£ Alkington, If he had adopted either course, we are by no
means sure that he would not have been met by an objection exactly the con-
verse of this, namely, that by law no such officer as churchwarden of a por-
tion of a parish can exist.
Placed, therefore, as the commissioner certainly was, in a difficulty, in a
case too where he certainly meant to act with good faith, we think that we
should see very clear and convincing reasons for considering his act invalid
before we arrive at that conclusion. And in the result, we are not so satis-
fied. Generally speaking, the churchwarden is peculiarly and emphatically a
parish officer. The nomination may be, and not unusually is, by a portion
of the inhabitants of a parish, or even by a person in the parish, but the
office is not thereby affected, and the officer is still the churchwarden of and
for the parish. We think that this may be considered as a somewhat unusual
case of separate appointment and separate acting, without affecting the proper
and legal character of churchwarden. It may have been an arrangement for
some purpose of real or supposed convenience. The churchwardens are sworn
in as for the parish. The acts before particularly alluded to are for the parish.
The general and undoubted character of the office is for the parish.
Upon the whole, therefore, we are of opinion that the ascertainment of
boundaries by the commissioner was, under these circumstances, well per-
formed, and that the defendant was improperly rated in Alkington ; the
order of sessions must therefore be quashed.
Order of Sessions quashed.
TRINITY TERM, 1836. 261
King's Bench,
Rex v. The Vestrymen and Vestry Clerk of the Parish of
St. Marylebone.
^HIS was a rule calling on the defendants to shew cause why a mandamus Tiie Court will
should not issue, commanding them to permit and suffer Charles Hibble^ genenSTpriudpie
and all and every person and persons rated to the relief of the poor of the of»»w, compel
parish of St, Marylebone^ and all other persons mentioned or referred to for «iklw'a mu" in-
that purpose by the statute (1 & 2 Will, 4, c. 60,) made for the better regu- J«"bitont inapcc-
lation of vestries and for the appointment of auditors of accounts in certain books of accounts,
parishes of England and Wales, to inspect and take copies of or extracts from °**V?* p™^^ ^"™
the rate-books of the said parish, and all other books mentioned and referred tiie same where
to and declared to be at the seasonable time open to such persons by the Jj^hi^^j^e books
said act, and why the vestry clerk should not pay the prosecutors the costs are kept do not
of and occasioned by this application. Charles kibble^ the applicant, stated him^^e^rfght to
in his affidavit, that the parish of St, Marylebone had adopted the provisions have such inspec-
of the Vestry Act, 2 fTill, 4, c. 60, and that the vestrymen of that parish ^Ichlo^n!^^
were chosen under that act. On the 4th of July last a resolution passed
the vestry to this effect : — ** That no person be allowed to copy from the
rate-books ; and that agreeably to the 32d section of the Vestry Act, no
person be allowed to inspect the books of the parish, unless he or she be a
rate payer or creditor of the parish." The affidavit went on to state, that
Nibble, being a rated inhabitant of the parish, subsequently made repeated
applications at seasonable times to the vestry clerk at the Court-House of the
parish for permission to inspect and take copies of or extracts from the rate-
books of the parish ; that inspection of the rate-books was allowed, but per->
mission to take copies of or extracts from the rate-books was refused by the
vestry clerk, upon the authority of the above resolution. The rate-books
from which copies or extracts were thus required, contained an account of
monies received for and on account of poor-rates and other parochial pur-
poses. Similar applications by other rated inhabitants had also been refused.
In answer to these affidavits, others had been filed by the defendants, stating
that the rate-books of the parish did not contain a true and regular account
of sums of money received and disbursed on account of parochial purposes,
nor of the several matters for which such sums of money were received and
disbursed : that the rate-books for the current year were not kept at the
Court House, but by the several rate collectors of the parish, to whom they
were respectively delivered on or about 1st July in each year, and in whose
possession they remain until the 30th June in each succeeding year : that by
the direction of the vestry, there was kept at the parish Court House, under
the management of the vestry clerk, a book, in which true and regular
accounts were entered of all sums of money received and disbursed for or on
account of parochial purposes, and of the several matters and things for
which such sums of money were so received and disbursed : that such book
was at all seasonable times open to the inspection of any vestryman, or of
any person or persons rated to the relief of the poor of the parish, or of any
creditor or creditors on the same, without fee or reward ; and that the said
vestrymen and persons and creditors, or any of them, might take copies of
or extracts from that book, or any part thereof, without paying any thing
262
TERM REPORTS in the KING'S BENCH.
King't Bench, for the same. The affidavits distinctly denied that any such vestryman,
person, or creditor, (specially naming the applicant) had ever made appli-
cation or been refused permission to inspect the last-mentioned book, or to
take copies of or extracts therefrom, on the 4th of Ji//y, or at any other time.
The Kino
V.
The Vestry
Clerk, &c. of
St. Mary-
I.IBONX.
The Attorney-General shewed cause against the rule. — ^The only rate-
book which is kept in the parish of Marykbone has been open at all tiroes to
the applicant and all other persons. That is a book regulated by the 17
Geo. 2, c. 38, s. 2 & 3. The other book is one containing a debtor and
creditor account, and is kept under the 1 & £ JVill, 4, c. 60, s. 32 (a). It
is not a rate-book, but a book something of a declaratory kind, now kept for
the first time.— [Pfl/^MO/i, J. — The 17 Geo. 2, c. 3(6), says nothing what-
ever of a rate-book, and the statute made in the same session, c. 38, directs
that copies of the rates shall be entered in a book, but does not allow copies
to be taken, but merely directs that *' all persons assessed or liable to be
assessed may freely resort thereto." Neither one of these acts, therefore,
will support the present rule (c).] — That is a primd facU answer to this
application. The party applied for an inspection of the rate-books, and now
he complains that he was not allowed to take copies of other books, not
rate-books. There is a local act, the 35 Geo. 3, c. 73, which directs that all
the rates are to be entered in books in a particular manner. It will perhaps
be contended that the other side is entitled to an inspection of those books ;
if so, the present application is answered, for the party applying has never
been refused what he now asks for. The present application relates to the
rate-books of the said parish, and all other books mentioned or referred to
as directed to be kept by the SZd section of the 1 & 2 fVtll. 4. The rate-books
are not within that statute, which mentions only books where a debtor and
creditor account is kept of the receipts and disbursements of the parish.
The applicant, therefore, has not brought himself within any of the acts
(a) By which it is enacted, " That the
vestry shall cause a book or books to be kept,
and true and regular accouDts to be eotercil
therein of all sums of money disbursed for or
OD account of parochial purposes, and of the
several articles, matters, and things, for which
such sums of money shall have been so re-
ceived and disbursed, which book or books
shall at all seasonable times be open to the
inspection of the said vestrymen, and of any
person or persons rated to the relief of the
poor of the said parish, and of any creditor or
creditors on the same, without fee or reward :
and the said vestrymen and persons and cre-
ditors as aforesaid, or any of them, shall and
may take copies of or extracts from the said
book or books, or any part or parts thereof,
vnthout pacing any thing for the same."
{b) By which it is enacted, " That the
churchwardens and overseers of the poor, or
other persons authorized as aforesaid, in every
parish, township, or pbce, shall permit all
and every the inhabitants of the said parish,
township, or place, to inspect every such rate
at all seasonable times, paying one shilling
for the same, and shall upon demand forth-
with give copies of the same, or any part
thereof, to any inhabitant of the said pansb.
township, or place, paying at the rate of six-
pence for every twenty- four names."
(c) But the first section of that act thus
speaks of the accounts of parish officers, both
as to money and goods: — " llie church*
wardens and overseers of the poor shall yearly
and every year, within fourteen days after
other overseers shall be nominated and ap-
pointed to succeed them, deliver in to such
succeeding overseers a just, true, and perfect
account in writing, fairly entered in a book
or books to be kept for that purpose, of all
sums of money by them received cr rated and
assessed and not received; which said ac-
count shall be verified by oath ; and the said
book or bouks shall be carefully preserved by
the churchwardens and overseers, or one of
them, in some public or other place in every
parish, township, or place, and they shall and
are hereby required to permit any person
there assessed or liable to be assessed, to in-
spect the same at all seasonable times, paying
sixpence for such inspection, and shall upon
demand forthwith give copies of the same, or
any part thereof, to such person, paying at
the rate of sixpence for every three hundred
words, and so in proportion for any greater or
lest number."
TRINITY TERM, 1836.
263
relatii^ to this matter. His application is too general in its nature, and the
rule must be discharged.
Sir W, Folleiif and Tcim/tn^on, in support of the rule. — This is a matter of
importance, and if this rule is not made absolute, the intention of the legis-
lature will be evaded. The dominant party in the parish has, for political
purposes, refused the inspection of these books. Unless the rate payers
have the means of taking copies of all these books, they cannot check the
admission of improper votes on the register. The provisions of the 35
Geo, 3, c. 73, are certainly relied on in support of this application. That
act directs the rates to be made, and the accounts to be kept in a particular
form, so that the sums due and those received shall at once appear. The
accounts thus made up are to be entered in a book, which is to be signed by
the authority of the vestry in that form. That is the only parish book
which contains an account of the receipts and disbursements of the parish. —
[Lord Denman, C. J. — The rule speaks of copies of the rate-books. Must
you not shew that they are within the 1 & £ fVilL 4, c. 60?] — No other book
has been kept which comes within the terms of the \ & 2 Will. 4, c. 60, as
containing an account of '* the articles^ matters, and things, for which the
sums received and disbursed have been so received and disbursed." The
book or books of these accounts are therefore the only books referred to by
that act ; and inspection of them, and the power of taking extracts or copies,
ought to be granted. The resolution passed on the 4th Ji//y is in contra-
vention of that act, and is clearly void. The case of Rex v. The Justices of
Leicester (a), distinctly shews that the rate-payers have a right to the inspec-
tion of all these books. The refusal to inspect rests on the resolution of
the vestry, which is illegal. The rate-payers have a right themselves to
take copies without payment of any fee ; Rex v. Staffordshire (b). (The
Attorney-General referred to Lord Denman*s observations in that case to
shew that the authority of Rex v. Leicester was doubted by the Court. —
Lord Denman^ C. J. — And we do doubt the case of Rex v. Leicester^ and
should wish to have the rule there laid down again considered.) That case is at
least an authority for this purpose, that if the present rule has been framed
in too general a form, the Court may mould it so as to meet the justice and
necessity of the case. It may be that Rex v. Leicester carried the matter a
little too far, still that objection does not hold here, and the rate-payers of
Marylebone ought not to be deprived of the power of examining their rate-
books and parish account books. — [Patteson^ J. — One of the acts now re-
ferred to does not give the right to take copies, and then your local act does
not say any thing of the inspection of the books.] — The provisions of the
local act, it must be admitted, do not forward this application.-- [Pa/^ejon, J.
— No ; you must rely on the general rule of the common right of all men to
an inspection of the things for which they pay. — Littledale^ J. — Are not
copies of the rate entered in this book ?] — The book is signed by the jus-
tices, and there is no other original. The 32d section of 1 & 2 WilL 4»
c. 60, will be quite inoperative if the rate-payers are not allowed the inspec-
tion of these books of accounts. The statutes of 1 7 Geo, 2, if they do not
directly apply to this case, at least illustrate the doctrine laid down in Rex v.
Leicester^ namely, that parties interested in public books of accounts have a
King's Bench,
The Kino
V,
The Veslry
Clerk, &c. of
St. Mary-
LKBONB.
(a) 4 Barn, k Cres. 891.
(6) 1 Harr. k Wol. 277.
2G4
TERM REPORTS in the KING'S BENCH.
King*t Bench, right to inspect them and have copies of them. — ILittledakf J.— With
respect to the poor-rate, I feel inclined to say that you cannot carry the
right further than under the provisions of those statutes; that you may
perhaps have the copy of the rate, but not of the book.]— Then the whole
object of the last act, which refers to books containing accounts of all monies
received and disbursed for parochial purposes, is defeated. — [Lord Deri"
man^ C. J. — Is the refusal here sufficient, and are the vestrymen the proper
persons to be applied to ?] — The local act says that the rate is to be made
by them. Its produce is entered in the book as part of the monies re-
ceived, and it therefore falls within the 32d section of the statute.
The Kino
V.
The Vestry
Clerk, &c. of
St. Mary-
UIBONB.
Lord Denman, C. J. — On the trial of an indictment arising out of the
political disputes of this parish, I expressed an opinion that the inspection of
these books ought not in propriety to be refused. I am still of that opinion ;
but the question, whether in point of law we can enforce the inspection, is
another matter.
Cur, adv. vult.
Lord Denman, C. J. said, — We have already stated what we think would
be right to be done by the defendants in this case respecting the production
of the books, inspection of which is now demanded. The complainant says
that he cannot obtain the information necessary for purposes relating to the
registration of votes for the election of members to serve in parliament,
unless he be allowed to take copies of or extracts from these books. Upon
consideration, we think that neither by any general principles of law, nor by
either of the acts of parliament referred to in the argument, can we be jus-
tilied in making the rule absolute. The rule must therefore be discharged,
but we think that it should be discharged without costs.
Rule discharged, without costs.
Doe d. William Lewis, John Mott, and Alexander
DoBiE V. John Baxter.
Where a judge 17JECTMENT for a house and premises in Feaihersione BuildingSf held
l^ccrtoirf Ji ii '^ ^y ^^® defendant under a lease dated 11th April, 1834, in which there
found oue vaiy Were the foUowing covenants, for breach of which (among others) the lessors
Uie verdict must * u j. I'l * *. ..
be foi the plain- ^^re to be at liberty to re-enter.
tiff, but if the " No Steam-engine, machine, or mill, shall at any time be used, erected,
fenda'itt, and such or sct Up in or on any part of the demised premises, other than the mill
fiict is found in ^q^ uge^j jjy (\^q lessee in his business of grinding and preparing corn, or a
supposed, the ver- mill of the like kind and power ; and no act, matter, or thing whatsoever,
u^d"foff the"' s^all at any time during the term be done in or upon the premises, or any
plaintiff, Uiottgh part thereof, which shall or may be or grow to the annoyance, nuisance,
8h"»id dfasentTt S^^^^^^^^t damage, or disturbance of the lessors, or of the superior landlord
the ume from or landlords, or any of their tenants," &c.
tion*ofSe*fi^ ^^ *^® ^"*1 o^ '^® cause before Lord Denman, C. J., at the sittings at
ing, and the
Court will not afterwards allow such entry of the verdict to be disturbed.
TRINITY TERM, 1836.
IVestminstcr after Mkhaduias texmy 1835, evidence was produced to shew
that the defendant, at the time of granting the lease, and for some time pre-
viously, had ground corn upon the premises by a mill worked by hand.
The mill was subsequently worked by a pony, which was said to be an
annoyance of another and a greater kind than had existed at the time of
making the lease. There was no direct evidence to shew whether any and
what alteration was made in the power of the mill by this change of the
moving power. In support of the plaintiffs' case, witnesses were called,
who stated that the new mode of working the mill produced much more
noise and disturbance than had ever been experienced before, and that this
had been complained of to the lessors of Baxter by the occupants of the
neighbouring houses, who were also tenants of the same lessors. Evidence
of other alleged nuisances, by the painting words on the shop-front, and
putting placards in the window, was also given. On the part of the de-
fendant, evidence was adduced to shew that the noise and disturbance had
not been increased by the employment of the pony as a motive power for
the machinery ; and it was further stated, that after a few days' trial of that
power its use had been discontinued ; and as to the other alleged nuisances.
It was stated that they had been removed upon complaint. Lord Den man
left two questions to the jury ; first, whether the mill now complained of
was the same mill or a mill of like kind and power as was in the shop at the
time of granting the lease ; and, secondly, whether the defendant had done
any act, matter, or thing, which was or might be or grow to the annoyance,
nuisance, or disturbance of the tenants, either by the working of the mill in
a different manner, or by the painting on the boards, or by the placards in
the window. If either of these questions was answered in the affirmative,
the verdict was to be for the plaintiff; if both were found in the negative^
the verdict was to be for the defendant. The jury retired to consider the
verdict. After some time. Lord Denman and the counsel left the Court, and
the Associate was directed to take the verdict. The jury brought in a
written paper, finding that the mill was the same, but that there had been an
increase of the noise in working the mill. The Associate said, then you find
for the plaintiff? and he stated the verdict as a verdict for the plaintiff,
Damages, one shilling. The foreman answered, '* Oh ! yes, nominal damages
— no more;" but some others of the jury intimated that they did not intend
to find for the plaintiff. A motion was subsequently made to set aside the
entry of this verdict, and the affidavits in support of the motion stated that
the verdict was not taken as the jurymen desired that it should be, and was
not the verdict of all of them, for some of them had dissented from it at the
time. No objection appeared to have been made at the time by the de-
fendant's attorney to the verdict being thus taken, but the Court granted the
rule, on the allegation that in fact all the jurymen had not assented to the
verdict being taken as a verdict for the plaintiff, but had desired to find the
fact, and take the opinion of the Chief Justice on the law as applicable to it.
265
King*s Beiich,
Doe
d.
Lewis
and others
V,
Baxtrb.
Plait shewed cause against the rule, and contended, that after the manner
in which the case had been left to the jury by the Lord Chief Justice, the
finding that there had been an increase of annoyance was a distinct finding
for the plaintiff, and that the Associate could not construe it in any other'
manner. No matter what the intention of the jury was as to the conse-
266 TERM REPORTS in the KINGS BENCH.
King's Bench, quence of their finding of the fact ; that finding was, so far as they were
concerned, conclusive, and their intention could not be permitted to alter it.
Dob Xhe verdict was rightly entered as a verdict for the plaintiff.
Lewis
and others Andreas^ Serjt., and W, H. Watson^ in support of the rule.— It is not dis-
Baxtes. pw^®^ '^at the jury found the fact that there had been an increase of the
annoyance, but that finding was not intended as a general verdict for the
plaintiff, but as a special finding of a fact, in order that the opinion of the
Court might be taken on the law. The objection is, that instead of the
finding being treated as it was intended it should be, as a special finding, it
has been treated as a general verdict for the plaintiff. The defendant has
thus been deprived of the benefit which he might have derived from a
special verdict, and is therefore entitled to have the matter set right by the
interference of the Court.
Lord Denman, C. J. — I am clearly of opinion that the finding of the jury
was in effect a verdict for the plaintiff. My direction to them was, that they
must find for the plaintiff if they were of opinion that any thing had been
done by the defendant which had been an increase of annoyance in the
working of the mill. Afler retiring to deliberate upon their verdict, they
found that the annoyance had been increased during the application of the
horse-power. Unless my direction to them was wrong in point of law, that
was clearly a finding for the plaintiff. The Associate was bound to enter
that finding as a verdict for the plaintiff. The jury, perhaps, felt unwilling
to find a verdict for the plaintiff which would have the effect of working a
forfeiture ; but still they could not help finding facts, and those facts entitled
the plaintiff to a verdict. If the jury had found the facts differently, and
this Court had dissented from their finding as one against evidence, a new
trial would have been granted, even though it was a case of forfeiture. If
I had remained in Court, and been present when the jury came with this
finding, I should have been bound to say that it was a verdict for the plain-
tiff; unless I was prepared to unsay all what I had said before. If, there-
fore, the jury had wished, as alleged, to take my opinion as- to the law upon
this finding of fact, I should have told them that their finding was a verdict
for the plaintiff, and that it must be so entered.
LiTTLEDALE, J. concurrcd.— If the Lord Chief Justice had remained in
Court when the jury had returned with the written verdict, he must have
construed it as a verdict for the plaintiff. That was its necessary effect, and
the terms in which it was expressed could make no difference. The only
thing which the Lord Chief Justice could have done, had the jury dissented
from such a construction of their finding, would have been to direct them
again to retire and to re-consider the matter ; and if then they had returned
with a verdict for the defendant, that verdict might have been set aside as a
verdict against evidence. Some of the jury, influenced perhaps by the hard-
ship of the case, dissented from a finding for the plaintiff, but still all were
agreed as to the finding of fact ; and that finding of the fact was in effect a
verdict for the plaintiff.
Patteson, J. — Every verdict of a jury must be taken with reference to
TRINITY TERM, 1836. 267
the opinion and direction of the judge. Here the judge told the jury, in Kine't Bench.
the words of the defendant's covenant, that if they were of opinion that he W\>^/
had increased the annoyance, they must find for the plaintiff. They find Dob
that the annoyance had been increased. That was a finding for the plaintiff ,
on the fact, though some of the jury did not agree upon the law attaching iDd others
upon it. This is nothing like a special verdict. It is a general finding of ^-
the fact, which being found in this way, was a verdict for the plaintiff*. The
Associate could do nothing but enter the verdict according to the Lord
CIn'ef Justice's direction.
Williams, J. concurred.
Rule discharged.
Rex V. The London Dock Company.
T^HIS was a proceeding by way of claim for compensation under the a dock act Mvr
London Dock Act (9 Geo, 4, c. 11 6). A mandamus had been issued and « Ck>mpiio.T power
a special return made, and on the argument of that return, the Court hJjS^&T.ttop
directed the facts to be stated in the form of a special case. The case stated «p wreeu, make
that the Company was constituted a corporation, and was authorized and thingsncrcttiiry '
empowered to make, complete, and maintain, in, through, over, across, and |® ^^'y ^« <>*>■
upon any lands, tenements, or hereditaments, vested in the Company under into effect ; and
the authority of the act, " and the streets, lanes, ways, courts, alleys, and !j P~*»<*«i» ** ^>*^
passages, situate and lying within the limits thereof, and according to such having an estate
plan or plans, and in such manner and form as they should approve of, an 5^°^[^^j^'
additional entrance to and communication with the said docks from the river nancy from year
Thames, at or near ShadweU Dock, in the parish of Si. Paul, Shadwell, in the ToMij^Sfor
county of Middlesex, with a basin or basins, lock or locks, cut or cuts, and heredi^ments,
all and every quay or quays, wharf or wharfs &c., and other matter or j„^ her.o?uieir
things necessary or proper to carry into effect the purposes of the act." •**<* w^te or in-
The 50th section of the act empowered the Company to treat for the pur- i^ktug^of any
chase of houses, buildintra, lands &c., specified in the first schedule. By »uchcut&c., he,
the d4tn section, it was enacted, that it should be lawful, as well for every should be
com-
or any tenant in fee simple, fee tail, or for life or years, or other owner and '*^^*'***,V ^*
proprietor, and also for every tenant at will, or from year to year, of any compensation in
houses &c., to demand and receive of the Company a proper and reasonable JJ^J^ou ofthe^
satisfaction or compensation for the loss of the good-will of any trade or bnsiness of a
business which should be carried on on the premises, and also for tenants* fix- {H'e iJ^^J^roVthe
tures and improvements, and for any other injury or damage which should be neiRbboarhood
sustained in consequence of the execution of the act. The 57th clause ^oftheways°^
authorized the impanelling a jury in case parties should not accept the ^«''» ^•** ^**
compensation ottered by the Company, which jury was to assess and ascer- injury to *« esut»
tain, and give a verdict for the compensation, if any, which should be made in or interest'* as
respect of good- will, improvements, or any injury or damage whatsoever to compensation.
be sustained by any corporation, or person or persons interested therein.
By the 81st section, the Company was empowered, though not compelled,
to purchase the premises mentioned in the second schedule. By the 8drd,
the Company had power to clear the ground and sell the materials ; and by
the 84th and 85th sections, to stop up the streets within a boundary, and
268 TERM REPORTS in the KING'S BENCH.
King's Bench. 8uch as were comprised within the first schedule, except New Growl Ltuiff
v^s^^ and, by consent of two justices, to alter and divert highways. The 89th
The Kino section provided, " That if any person or persons having an estate or in-
LoNDON Dock terest not less than a tenancy from year to year, in any houses, lands, or
Company, hereditaments, shall be injured in his, her, or their said estate or interest, by
the making of any such cut, sluice, bridge, or road, or other work, every
such person or persons shall be compensated by the Company for such
injury, and such compensation shall, in case of disagreement, be ascertained
by a jury in the manner herein directed for ascertaining the value of pre-
mises to be taken by the Company under the authority and for the purposes
of the act."
William Hartree and Ann Lammman (the parties on whose application
these proceedings were taken) were the surviving trustees in fee of a certain
messuage or tenement, public-house and premises, called the JVheatsheqf, in
Star Slreel, and Ann Lammiman was tenant for life of the same premises for
her own use and benefit, and had been in the occupation thereof, as such
tenant for life, since 1827, and carried on the trade or business of a vic-
tualler therein. This messuage or tenement was included in the first
schedule, and it appeared that its situation was in the midst of a great
number of thoroughfares, with approaches to it in all directions, and Star
Street itself, in which it stood, was a much frequented thoroughfare for
persons passing from Shadwell High Street to Wapping Wall and the river
Thames, and that such persons are now confined to only one approach from
the north of New Gravel Lane,
The London Dock Company, in pursuance of and in execution of the act,
purchased a great number of the houses, &c. comprised in the first schedule,
llie Company also, in pursuance of and in execution of the powers given by
the act, made the additional entrance to the docks from the river T'hames at
^ Shadwell in the act mentioned, the same consisting of a cut with locks, and
such other works as were necessary for carrying into effect the purposes of
the act, together with bridges for horses, carriages, and foot-passengers
across the cut at New Gravel Lane and Fox Lane. The cut is not, nor are
any of the works executed by the Company in any way contiguous to the
messuage or tenement in question.
In consequence of the Company's having pulled down such houses and
buildings under the act, and destroyed the streets, courts, lanes, and alleys,
which comprised the same, Ann Lammiman, as the occupier of the public-
house in question, lost several customers who had been inhabitants of houses
so pulled down, and had been in the habit of frequenting her public-house ;
and it was stated, that by reason of such pulling down of the houses, the
neighbourhood of Star Street had become less populous than it used to be,
and in consequence thereof, and of the stopping up of the several streets, and
of destroying the direct thoroughfare through two streets, and the indirect
thoroughfares from several other streets, part of the casual and local custom
of the public-house had become lost to Ann Lammiman, and by these means
the profits of the business carried on by her had been diminished, and the
good-will of the trade or business lessened in value, and the pecuniary value
of the premises, either to sell or to let as a public-house or shop, but not as
a private residence, had been considerably reduced.
The additional entrance was carefully and properly made by the Company,
TRINITY TERM, 1836. 269
and the several acts and works of the Company were all necessary and King*s Bench,
proper for the completion thereof, and for carrying into effect the purposes >^^>^/
of the act, and in executing the same the Company had done as little injury ^**® ^'^°
to the property and interests of other parties as possible, in order to carry London Dock
the same into effect. Company.
If, under these circumstances, the Court should be of opinion that the
injuries above-mentioned entitled the owner or occupier of the messuage to
a compensation from the London Dock Company^ a peremptory mandamus was
to issue ; if of a contrary opinion, the rule was to be discharged.
Kelly, for the Crown. — The first question which the Court has to decide
is, whether the parties here have an interest sufficient to enable them to make
this application, It is clear that they have ; for they possess, within the
words of the act, '* an estate or interest not less than a tenancy from year to
year." The next question then is, as to the meaning of the words " injured
in his, her, or their said estate and interest.*' It is clear that these parties
have been injured by what the Company has done. Mrs. Lammiman was
carrying on a good business ; that business has been destroyed by the taking
away of the streets near to and adjoining her house ; customers can no longer
come to her house, except by more distant and less convenient ways. She
has thus not only lost the custom of the persons who resided near her, but
of those persons who came through those streets to her house. Compensa-
tion is to be given for the value as well as the duration of the interest, and
the value here is proved to have been materially diminished. That value
must be measured, first, by the price for which the premises would have sold
before the alteration, as compared with what they would sell for now, and
next, by the difference in the money taken in the business before and after
the alteration. It is not meant to be contended, that the loss of what is called
good-will can be made the subject of compensation. No demand is made in
respect of good-will, or what the business would have sold for. That might
be a matter depending on calculation ; but the loss here is a loss arising upon
an existing business — it is capable of positive proof. The powers possessed
by the Company were given on condition of making good the losses suffered
by individuals from the exercise of those powers. This is a loss so occa-
sioned.— [Coleridge, J. — If the Company had bought the soil, and pulled down
the houses, do you mean to contend that compensation must have been given
for the loss of the custom of those persons who were obliged to remove from
the neighbourhood because of the houses being pulled down ?] — The case
supposed and the present case are not exactly alike. Here the Company has
stopped up the former public ways, and Wilks v. The Hungerford Market
Company {a)f shews that compensation must be made for an injury conse-
quential on such stopping up. — [Coleridge^ J. — In that case, the plaintiff re-
covered in consequence of the Company having exceeded the powers given
to it by the act. That is not the case here.] — But the act does not give
compensation solely in cases where the powers it confers have been exceeded,
but where injury has been suffered from a proper exercise of those powers.
Sir F, Pollock, contrd. — ^The argument on the other side is too general,
and, if fairly carried out, there would be no loss whatever, however indirect
(a) 1 Hod. 287, 3 BiDg. N. C. 281.
270 TERM REPORTS iw tbe KING'S BENCH.
King's Bench, or consequential, for which a puhlic company would not be liable to make
v^'/^i/ compensation. If the argument on the other side can be supported, then, a
The KiKo street like Regent Street could not be built by a public company without
London Dock compensation being claimed by the inhabitants of a neighbouring street like
Company. Bond Street, on the ground that their interests were affected by the creation
of a new thoroughfare. Again, if a company undertook to improve the north
side oi St.PauVs Church-yard, the inhabitants of the south side might say
that the traffic on their side was lessened, and might claim compensation.
Such imaginary injuries as these the legislature never intend to compensate.
It is not a consequential and doubtful, but a clear and direct injury, that is
the subject of compensation ; Rex v. The Commissioners of Nene Outfall (a).
That case was stronger than the present, for the injury there was the direct
and necessary consequence of the act of the commissioners, who had taken
some arable land and covered it with water, yet the Court held that the
vicar was not entitled to compensation for the tithes which he thereby lost. The
claim here, however denied in terms, is in substance a claim for the diminished
value of the good-will of the business. The value of the house itself, inde-
pendently of the business, remains at least as great as before. An answer
has been already given to the case of WUks v. The Hungerford Market Com-
-pany. There the Company had exceeded the powers of the act, and the
plaintiff recovered damages for that excess. No excess has been committed
here. Wherever the legislature has intended to compensate a distant conse-
quential injury of this kind, it has distinctly declared such intention. It did
so in the act for the formation of the West India Docks, with respect to the
injury to the business of the wharfs along the side of the river. It has not
done so here, and the omission, therefore, is a clear proof that no such com-
pensation was intended to be given.
Kelly, in reply. No compensation is asked for good- will, but for the loss
of an existing and successful trade. The return here is, that the premises are
reduced in value as a public-house or shop. The present claim, therefore, is
justified by the very words of the return. The Company has stopped up
the ways and rendered the premises less valuable than before. — [Lord Den*
man, C. J. — The 84th section relates to the stopping up of the ways, but gives no
claim for compensation. The 85th gives the Company power to make roads.
The 86th, to cause sewers and drains to be arched over. The 87th, to make
sluices ; and then comes the 89th, declaring, that any person who is injured
in his estate and interest *' by the making of any such cut, sluice, bridge or
road, or other work," shall be compensated ; must not the word *' such" have
some meaning, and must it not, therefore, refer to the things described as made
in the former sections.] — All that was done was part of the making of such cut,
and is therefore properly the subject for compensation. — [^Patteson, J. — That
might be so if any person was injured by it, but according to your argument,
persons living in the neighbourhood must of necessity be injured.] — There is
no doubt that the applicants have been injured here. The character of the
house ought to be considered in awarding compensation. Thus, a wharf
ought to be the subject of compensation in respect of its trade, though not
in respect of the sum which the sale of the trade might probably fetch in the
market. That is the distinction between trade and good-will taken in this
(a) 9 Barn. & Cress. 875.
TRINITY TERM, 1836. 5
case. Here the trade itself has been destroyed. The parties have been in- King*t Be
jured in their interest in the house, and are entitled to compensation. The v^/^
general words of this act are sufficient to include a claim of the sort now ^^^ ^'^
made. London I
Cur. adv. vult. Compan
The judgment of the Court was in Trinity term delivered by
Lord Denman, C. J. — This case was argued in the course of last term, on
a return to a mandamus. The question was, whether any compensation was
given by the 9th Geo. 4, c. 11 G, s. 89, for the consequential injury which the
prosecutors of the writ had suffered in their interest in a certain house occu-
pied by one of them as a public-house, by certain acts of the Company. It
is proper to state distinctly the nature of the injury for which the prosecutors
sought compensation. It was for an injury which, it was alleged, had arisen
by the destruction of the neighbourhood by the formation of the basin and cut
of the Company, on ground formerly covered with houses, and by the stop-
ping up of certain thoroughfares which passed near the house in question, and
which offered convenient and ready access to that house. By this act of the
Company, the custom of the house was diminished, and its pecuniary value
to let or to sell, as a public-house, was also lowered. The question was,
whether the Company had, by making the cut, &c., injured the complainants
in their estate and interest ? In the argument of the case, not much stress
was laid upon the loss of neighbourhood, as indeed it was clear that the
Company had the power to pull down the houses. It was conceded also, that
the injury to the good- will was not a substantial injury for which the party
was entitled to compensation ; but it was alleged that the stopping up of the
ways and roads by which the owner had the most convenient communication
with her house, and thereby compelling the customers to go a more circuitous
route, was an injury to the owner, and being so, the amount of the usual
receipts before and after the passing of the act might be considered, as shew-
ing the quantmn of damage. In support of this argument the case of Wilks
y. The Hungerford Market Company was conBdently relied on. We see no
ground to dispute the validity of the decision in that case, but it has no bear-
ing on the present. The objection to what had been done there was, that
the Company had exceeded its power, by keeping the passage stopped up for
an unreasonable time, by which the plaintiff was damnified. In the present
case there are express words in the act of parliament authorising the Com-
pany to do the act from which the injury is alleged to arise, and if the injury,
by diminishing the value of the house to let or sell as a public-house, be put
out of the question, as it was in substance conceded that it might be, for a
claim for good-will was expressly disclaimed, there appears to us to have
been no injury sustained. We must decide this question on the words of the
89th section, calling in aid the other provisions of the act, and proceeding on
that principle, we see nothing in the act to warrant us in saying, that this
was an injury within any reasonable construction of any of its provisions.
The inconvenience was an injury in common to the whole neighbourhood,
more or less, but it was the necessary consequence of a lawful act done by
the Company. It was impossible to make the cut and basin without stop-
ping up the ways and destroying the neighbourhood, and this necessary con-
sequence must have been foreseen by the legislature, and if it had been in-
272 TERM REPORTS in the KING*S BENCH.
King^s Bench, tended to have given any compensation, it is hardly to be conceived that
^^^'^ language would have been used so little applicable to a case like the present,
1 be Kino ^^ ^j^^ language of the 89th section. It is proper to read that section as
Ix)NDON Dock intended to provide for unforeseen injury of a direct and positive kind to the
Company. estate and interest of any individual, as if by the works the Company had
weakened the foundation of houses, darkened the lights of windows, and
caused injuries of that kind to any house in the neighbourhood. The object
of the section evidently was to give compensation for such injuries, but to
exclude any vexatious claims that were likely to be made on account of trifling
injuries. Upon the whole, we are of opinion that the claim now put forward
cannot be sustained as for an injury to the estate and interest of the party,
within the meaning of the 89th section, and therefore that the rule for a
peremptory mandamus must be discharged.
Rule discharged.
Tyler v. Bennett.
An interest in Hj^HIS was an actiou of trespass. The declaration contained several
tenant tea dml- couuts. The 6rst count was for disturbance in the use of the water of a
ling house is an pump which the plaintiff claimed as appurtenant to his dwellinir-house. The
and where sudi Other couuts are not material to be considered. The defendant pleaded two
?" *"«7on*^he* P'^^^ • ^^^^» "^' g"*^^y ? second, denying title. At the trial of the cause,
couit will Liiow at the last assizes for Glamorgan^ the plaintiff proved, that in virtue of his
co8t5^*noi'with" occupation of the dwelling-house, he had a right to draw water from the
standing a ccrti6- well, and that he had been disturbed in the exercise of this right by the
damages' we're for defendant. The jury returned a verdict for the plaintiff, — Damages If.
a sum less than Xhe learned judge before whom the cause was tried certified, under the sta-
tute of Eliz. that the damages recovered were less than 40s. A rule had
since been obtained, calling on the defendant to shew cause why the Master
should not tax the plaintifi* his full costs notwithstanding the certificate.
40i.
Chilton shewed cause. The mere right to draw water from a well is not a
title or interest in land, yet this mere right was all that was proved at the
trial, and the damages given were under 40^. This, therefore, is clearly a
case within the statute of Eliz, The right to draw water from a well is a mere
easement, like a right to a light. Edmondson v. Edmondson (a) will probably
be relied upon by the other side. That was a question as to the right to take
turves, and it must be admitted that the opinion of the Court there seemed
to be, that if that question had properly been put in issue by the pleadings,
it would have been a case respecting an interest in land. But there is a great
distinction between that case and the present. The right to take turves is a
proBt d prendre, which is very different from the mere use of water in a well.
The latter is a personal right which some party has in consequence of the
possession of land, but it is not a right to land, or a title or interest in it.
Sir W, Follett and /. Evans, in support of the rule, were stopped.
Lord Denman, C. J. — An interest in the water of a well appurtenant to
a dwelling-house, is an interest in land.
(a) 8 Rast, 294.
TRINITY TERM, 1836. 273
LiTTLEDALE, J. — It is 80 Certainly, though not so stated in this declaration. KiNg'$ Bench.
Patteson, J. — In Edmondson v. Edmondson it was not doubted, that if the '1 vler
I.
»ETT.
right to take the turves had come in question, it would have been an interest Bemn
in land.
Rule absolute.
Serjeant and others, Executors of Serjeant, v. Chafey.
"DEPLEVIN. Axxmry for taking the goods as a distress for rent due in lu order to ro-
respect of a holding under the terms mentioned in a lease granted by hive judgment
one H. jibbott to the testator of the plaintiffs, at a rent of 650/. a-year. «»icred for him
Plea^ denying the tenancy. The lease in question was granted on the 1 st w, 4, c. 42. '• ac-
November, 1819, for fourteen years wanting a few days, and ending 11th «>rdiD8iothe
October, 1833. At the time that this lease was granted, the outstanding jasuceofthe
term was in mortgage. In 1828, Dr. Chafey, the defendant, became seised *^"*!'" **tj""*„j ^
both of the legal and equitable estate in the premises. Before the convey- who tries tUo
ance was made to him, he gave notice to the tenants to pay rent to him. S!Ie**«»d^*°bL-
He subsequently brought an action against these plaintiffs, and they suffered fore the verdict
judgment by default. The question of their continuing in occupation of the Dounced/Tfur
premises was then made matter of arrangement, and they continued. At the verdict it is too
trial of this cause before Coleridge, J. at the Spring Assizes for Worcester in xi,e Court wiii
1 835, the great question in dispute was, on what terms the plaintiffs had "*>' 8»ve « party
. , the iidvaiiUice of
continued to occupy the premises. The plaintiffs contended that it was anew trial, merely
upon a rent of 500/. a-vear, and subject in other respects to the terms men- *>«<»«»^ '"»»»» pa'-
* rT«ii/»j'«ji licular case tlie
tioned in the lease granted to the testator. The defendant msisted upon new rules may
650/. as the amount of the rent. The learned judge left the question owiT^ujI^n^Wm,
of fact to the jury, who returned a verdict, finding that the rent was 500/. especially if bo
a-year, and that the holding was in other respects subject to the con- ^oided*Juch an
ditions mentioned in the lease. An application was then made to the learned «ff«<'t i>y adopting
judge to amend the avowry, by inserting 500/. instead of 650/. The appli- ©f proceeding. *
cation was refused. This court wiii
A rule had been obtained calling on the plaintiffs to shew cause why, • shorthand
under the 3 & 4 WUL 4, c. 42, judgment should not be given according to ^j'*''***®^^^^^*
the justice of the case, or why the defendant should not amend his avowry up. though ve-
according to the finding of the jury, by entering a claim for a rent of 500/. [j^^fii^^^^t^;*,*;;!?'
per annum instead of a rent of 650/. It was argued, that as the defendant to the notes of the
was not under the new rules permitted to plead a second avowry, and as the ^"**** '"niseif.
amount of the rent might be doubtful, he was precluded by the technical
rules of law from putting on the record a fiill defence, and that the Court
ought now to compensate for this evil by entering up judgment for him
according to the very right and justice of the case.
Richards, shewed cause. — In the first place, he wished to call the attention
of the Court to the fact, that the rule was expressed to be granted upon
reading the short-hand writer's notes of Mr. Justice Coleridge's summing up,
verified by affidavit.— [Lord Denman. C. J. — I ought at once to say, that we
think we cannot rely on the notes of a short-hand writer for any purpose of
shewing what was the fOmming up of a learned judge. The short*hand
VOL. II. T
274 TERM REPORTS m the KING'S BENCH.
King's Bench, writer's notes may be a most accurate report of what passed as to expres-
^"^/^^ sions, and yet present a very incorrect notion of the learned judge's meaning.
^t^J^f-v'T We can rely on his notes alone for an account of his summing up.] — The
,;. whole struggle in this case was as to the amount of rent reserved. The
Chafey. plaintiffs will be made to suffer unjustly from the defendant's own conduct, if
this rule should be made absolute, for if the defendant had avowed for a rent
of 500/. a-year, the plaintiffs would have shewn payment of all that ever
became due. There is this difficulty in permitting the proposed amend-
ment. The sureties here are parties to tlie cause, and they ought not to be
prejudiced. — l^Patieso/if J. — Suppose that there had been a motion for a new
trial, we should have granted or refused it without reference to the sureties.]
That would have left the matter still open as before on the fact, but here,
notwithstanding the fact, the Court is asked to enter a verdict for the defend-
ant. The Court has no power to grant such an application. This amend-
ment cannot be made without going into the accounts between the parties,
which is a thing that this Court will not do. — [Patteson, J. — ^The statute
3 & 4f Will, 4, c. 42, is quite out of the question here, for there was not
within the terms of its provisions any application, before verdict given, for an
amendment, and a refusal to make such amendment to the verdict. The
statute clearly limits the right to make such applications to a period ante-
cedent to the verdict.] — Then if not within the act, this Court has no power
to make the proposed amendment. — [Lord Denman, C. J. — We all think
that this rule must be remodelled, so as to meet the object we intended
when we granted it. There is no doubt that the application under the
d & 4 Will, 4, c. 42, cannot be maintained. The rule now must be con-
sidered as a rule for a new trial.] — Then there is no pretence for such a
rule. The only question in the cause was fully left to the jury, and the
verdict is completely borne out by the proof. He was stopped.
The counsel who were to have been heard in support of the rule were
not present.
Lord Denman, C. J. — The application here is to remove an inconvenience
which is said to have resulted to the defendant from the new rules. It seems
that he has been mistaken as to the amount of the rent, and has stated it at a
larger sum than is correct. We have been asked to amend this mistake accord-
ing to the fact proved at the trial. It is possible, that if made in proper time,
a motion such as this might be complied with, but it is too late now; and, con-
sidering that from first to last the defendant has chosen to rest his case upon
the very point, and has resisted a reference on this issue, it does seem to me
that this is not a case for us to interfere. I am of opinion that these new
rules work well, and nothing can be more reasonable than to suppose that
parties must know their own contracts, and must be able to state them truly.
The defendant here has not been precluded from succeeding, where he had a
right by the new rules, but by his own conduct.
LiTTLEDALK, J. fully coucurrcd.
Patteson, J. — This rule must be discharged. The case was originally
put as if the defendant had not the liberty to plead a second avowry. In
TRINITY TERM, 1836. 275
fact that was not so, for the avowry was pleaded before the new rules came King\ Bench.
into operation. But even if they had been in operation before the avowry ^^^."^
had been put on the record, the defendant would not be entitled to the Serjeant
assistance of the Court ; he has thought fit to take his chance of recovering *°^ °^^®'*
the larger rent, and has failed. He must submit to the consequences. The Cuafev.
application to amend ought to have been made before verdict, and the Court
cannot now give the defendant the benefit of such an application in the sliape
of a rule for a new trial.
Coleridge, J. — The way in which this case was put by the defendant's
counsel when the rule was obtained, amounts to raising this question, whe-
ther the Court will or not uphold the new rules, or will make them give way
whenever by any accidental circumstance, not the necessary consequence of
the rules themselves, they happen to press hard upon a particular party. If
this were to be done, the new rules had better be expunged altogether from
the books. I meet the question, therefore, directly, and I say that we are
prepared to uphold the new rules : that we will not depart from them, nor
put the practice of pleading again into its former state. The whole diffi-
culty in this particular case has been brought on the defendant by his own
act, and he has no title to claim the interference of the Court to enable him
to try this same question on a fresh issue.
Rule discharged.
Rex v. Williams, Sankey and others.
A RULE had been obtained by a Mr. Dowries, as town clerk of the town a person who i*
and borough of Ludlow, for a mandamus to be directed to the late bailiffs ****j' '°!'" ^^^^^
of Ludlow and the late town clerk, commanding them to deliver over to the corpomUoD. may
present town clerk all books, books of account, bills, securities, muniments, J,**'^ '" '*'* ''"*'''
records, and papers, of and belonging to the corporation of Ludlow, or re- on corporation
lating to the property thereof. In answer to the application, affidavits were cou^n wiu uot
produced stating that the bailiffs had not refused to deliver over any books i»ue a mamdamut
or minutes, except such as related to estates vested by charter in the old to deUver uT****
corporation, " in trust to keep and continue a grammar-school in the town of '>o<>kianawritiug8
Ludlow, for educating and instructing children and youth in grammar ; the the corporation?
school to be kept by one master and one usher, and also to keep and main- *fhc claims a*
tain, with the issues and profits of the said premises, thirty-three poor indi- a iien on them.
gent persons within the said town of Ludlow, giving to every of them four- thi'gjjf"* *^*'
pence every week, and also one chamber for every one to live in ; and also uonoftiie5^6
that a discreet and able person, learned in holy writ, should be appointed a'ppuVt'to Jwr «»
preacher of the said town ; and that another able and fit person should be voiunuriiy
chosen to be assistant to the rector of the church of Ludlow, both which ^^atJjfn?
persons should be for ever sustained and maintained out of the issues and an<i the 71st
profits of the said premises." It was also stated that the town clerk had left uTthe wp^
delivered up all documents &c., except such leases and counterparts as had ration by other
come to his hands as solicitor to the corporation, upon which he claimed to nubie purposes.
have a lien for money paid and business done for the corporation as solicitor
to the corporation.
T 2
276
King*t Bench.
The KiMO
V.
Williams
and others.
TERM REPORTS in the KING'S BENCH.
The Attorney-General, Sir P. Pollock, and Cleasby, shewed cause against
the rule on behalf of the late town clerk.— The only papers refused by the
late town clerk to be delivered up, are those which came into his hands as
solicitor to the corporation, and on which he has a lien. His claim of lien is
not as town clerk, but as a solicitor, and the fact that he was also town clerk
will not deprive him of the right to it. The lien depends not on the cha-
racter of the employer, but on the nature of the employment.
Sir W. Follett, and Chandless, shewed cause on the part of the bailiffs of
Ludlow. — There is no proof that the bailiffs have in their custody any papers
or documents to which they are not entitled for the purpose of carrying into
effect the trusts thereby created. The right to any estate vested in the
whole or in part in the corporation for charitable purposes, remains, under
the 71st section of the Municipal Reform Act, in the old trustees, and the
bailiffs here are the old trustees, so that there is no ground for an application
against them. Even, however, if they did possess any deeds of the cor-
poration, which they were not entitled to retain, a mandamus would not be
the proper remedy. Trover will lie for public deeds, and as that is the
case, the Court will leave the party now applying to his civil remedy.
Maulc and Erie, in support of the rule. — These papers and documents
were received by one of the defendants as town clerk, and he cannot, be-
cause he happened also to be solicitor, claim a lien over them. As to the
other defendants, it is clear that this mandamus must go. The 68th section
of the 5 & 6 IVill, 4, c. 76, makes the borough liable for all pensions and
allowances, and for " all stipends which, during seven years next before the
5th oi June, 1835, have been usually paid and granted to the minister of any
church or chapel, the master or usher of any school, or the governor or
master of any hospital within such borough." The property, therefore, in
all deeds relating to such stipends and allowances must be in the existing
corporation, and to its olHcer such deeds should be delivered up. In the
71st section, the body corporate is spoken of as " seised or possessed for
any estate or interest whatsoever, of any hereditaments, or any sums of
money &c., in whole or in part, in trust or for the benefit of any charitable
uses whatsoever ;*' and it is directed, that for a certain time the right of such
body corporate shall continue in the persons entitled at the passing of the
act. The application of the words *• in whole or in part" may be doubtful,
but it is submitted that they must be construed to mean, that where the cor-
poration is seised of part, and other persons are also seised of part as trustees
for charitable uses, that the right shall continue in the old corporation.
That is not shewn to be the case here, and the right therefore passes entirely
from the old trustees to the new corporation.
r'
Lord Dekman, C. J. — It appears to me there is no ground for this rule.
I cannot doubt that a person who is town clerk and attorney has a lien as
attorney upon papers in his possession for business done in his professional
character. As it seems to me, there is no possession by any of the parties
but him, and no refusal by him to call for our interference, for he claims
to hold the papers for a particular purpose, namely, because he says he has
a lien upon them for business done. His retaining them under such circum-
TRINITY TERM, 1836. 277
stances is nothing but what he had a right to do, and his claim of lien jus- KingU Bench,
tifies him in not deh'vering up possession of these documents. On the v^v^
whole, therefore, I think that this rule ought to be discharged, and with The Kino
costs. The question under the 68th and 71st sections does not arise; but Williams
if it did, I own I should be inclined to think that the 68th section related and others,
only to pensions and allowances granted by the corporation, and not to any
payments of a charitable nature created by trust-deeds. The subject-matter
of the 71st section is property secured for charitable trusts, and these are to
be regulated on application to parliament or to Chancery.
LiTTLEDALE, J. — The town clerk would not have a lien upon books and
muniments which he has the possession of in his capacity of town clerk.
But with respect to title-deeds which have come into his possession to advise
upon, or by which to draw leases, he has a lien upon them as much as any
other solicitor. It rather appears to me that the 68th section only applies
to pensions granted by the corporation, independent of any estate ; and the
71st section applies to any estates which the corporation held in trusty either
in the whole or in part for charitable purposes. The members of the old
corporation hold such estates as trustees until it has been determined by
parliament or the Chancellor what is to be done with them. There is there-
fore no ground for the present application against the bailiffs.
Patteson, J. — I cannot doubt that the town clerk to a corporation, who
is also solicitor or attorney to the corporation, and transacts business for it as
such attorney, would have a lien upon all such books and papers as came to
him in that capacity, notwithstanding that he is town clerk. I do not mean
to say that he has any upon such deeds as he is in possession of merely as
town clerk. A distinction has been taken between a town clerk and a soli-
citor, but the same distinction exists between a steward of a manor and a
solicitor ; yet a solicitor, who was steward of a manor, might have a lien on
papers relating to a manor which came into his hands as a solicitor. In
IVorrall v. Johnson (a), as here, there was a claim to retain on a lien, the
defendant having been steward of a manor and solicitor, and the claim was
allowed. As there was a claim of lien set up here, which was not denied,
but acquiesced in, I cannot see that what has taken place here has been any
refusal on the part of the town clerk to deliver up deeds, and the rule must
therefore be discharged, and with costs ; not however because there was no
refusal, but because he had answered the application, and that answer was not
communicated to the Court when the rule was moved. With respect to the
other parties, it is doubtful whether they have any deed in their hands or
not; if they have, they hold it claiming under the 71st section, and Mr.
Downes holds it as their attorney and solicitor. As to the other point, we
are not compelled to put any construction to the 68th section ; but, if re-
quired to do so, I should agree with my lord and my brother LUiledalet and
say that it applies to such charges as the corporation has created voluntarily,
and that the 71st section is intended to apply to estates left by other persons
to the corporation for charitable purposes in part or in whole ; that is, whe-
(a) 2Jac. & Walk. 214.
278 TERM REPORTS in the KING'S BENCH.
Klng't Bench, tlier partly or wholly for charitable purposes, and not whether they are partly
^-^v^ in the hands of the corporation and partly in the hands of other persons.
The Kino
*'• Williams, J. concurred.
Williams Rule discharged, with costs.
aod others.
Bird v. Higginson (a).
To aspeciBi ac- rpHIS was a question of costs. It was argued in Hilary term fay Kelly for
tion ou au agtee- X , ^]^ni\ff and by the Attorney-General for the defendant, and time taken
nent with an Hc- "'^ r'"* » <' z-wti t i»i« -i ii»
count stacrd, Uio (q coHsider the arguments. On the last day of this term judgment was deli-
**r/Scd "first, iwn vered. The facts of the case, and the points submitted for the consideration
msmmpsit ; s« of (he Court, are so fully referred to in the judgment, that it has been
J^JlimVnrww" deemed unnecessary to repeat them here.
obtiined by fraud
and covio ; and, i^rd Denman, C. J. — This was an action for the non-performance of an
ajireemeut vas agreement. The first count of the declaration stated the agreement. There
void, being an ^^^^^ ^ couut OU an accouut Stated. The first plea was the seneral issue;
agreement for an ^"^ .
Interest in land, sccoudly^ that the agreement was obtained by fraud, covin, and misrepre-
*^der*8e^!°The scutation ; and, lastly, that the agreement was void in law, not being under
plaintiff took issue geal. There was a traverse of the first special plea and a demurrer to the
pU'M,Vnd*dc^ other. The cause was tried before the argument on the demurrer, and at
nurredto tiie (})£ trial a verdict passcd for the plaintiff^ damages ^00/., costs 40«., on the
^' tried, and tiie issue as to the fraud, and no evidence was offered on the non assumpsit. The
p'**"^'^***!?^"'**' demurrer was subsequently argued, and judgment was given for the defend-
damages on th« ant. The parties then went before the Master on the taxation of costs, and
***d*c"iD* but** *^® defendant said, that as the agreement in question was declared upon the
gave no evidence argument on the demurrer to be void, and as there was a verdict for him on
MaiMi^and the the account Stated, there had been a complete answer to the whole decla-
defendant thfre- ration, and therefore the issue on the fraud was a nullity, and the plaintiff*
on the MM msntrnp- ought uot to be allowed the general costs of the cause. On the other hand,
jd. Tiie demurrer ^^^ plaintiff claimed the benefit of the postea, and insisted that he was en-
was snbsequentij '^ ,.,,. /.I
ai^ed, and judg- titled to the costs of the cause, subject to a deduction on account of the
SS^dlLt ^Th^i'* ^^^"^^ ^°""^ ^^^ ^^^ defendant. The Master allowed the plaintiff* the general
Master allowed costs of thecause On the issue on the plea of fraud, deducting from them the
ill^aicosuoftiie costs upou the Other issue and on the demurrer. Cooke v. Sayer{b) was
cause on the issue referred to for the purpose of shewing, that as the defendant had the general
deducting from' judgment, he could not be liable to the costs of trying the issue of fraud.
Uiemthecostocn That case was almost exactly the same as the present. There the plaintiff*
the issue round ... .
for the defend, brought an action for criminal conversation. The defendant pleaded not
iTth^dtmuntr? g"^lty» ^^^ ^oi guilty withiu six years. The plaintiff* took issue upon the
^//•/rf, that the first plea and demurred to the second. The trial of the issue came on
periy*aiiowed**^ before the argument upon the demurrer, and the plaintiff* obtained a verdict
these costs:— and damages. The demurrer was then argued, and the defendant obtained
party entitled to judgment. The parties came to the Court for directions to the Master as to
the costs of the
pleadings on any („) See the case repoiled on the argu- (b) 2 Burr. 753: 2 Wils. 85.
tasue found for ^^^^ demurrer, ante, vol. i. p. 61.
him, IS entitled *^ » » r
to all otlicr ex-
penses incidental to those pleadings.
Where an issue is to be tried and a demurrer to be argued, the plaintiff nerd not delay trying his cause
till the demurrer has t>oen decided ; and if the issue is found in his favour, and tlio demurrer is decided
against liiro, tliough tliat demontr may go to his right of actiou, he will still be entitled to the costs of tlie
Issue.
TRINITY TERM, 1836. 279
the manner in which he was to tax the costs. After the case had heen King*s Bench.
argued, the Court took time to consider it, and then declared that the de- v^v^^
fendant was to have the costs of the demurrer, which had been decided in \^
his favour : that as to the costs of the trial, the plaintiff was not to have Higginsok.
them, because he had no cause of action ; nor ought the defendant to have
them, because the plea had been found against them. That case, if rightly
decided, ought to govern the present. But in Yates v. Gvn (a), a similar
question came under the consideration of the Court of Common PleaSf and
received a different decision. In that instance, as here, the cause was tried
upon the issue of fact before it was decided on the demurrer. " The plain*
tiff had a verdict on the issue, and the defendant a judgment on the de-
murrer ; plaintiff moved for the costs of the trial. The Court ordered the
prothonotary to tax costs on both sides, and that plaintiff's costs of the trial
be deducted out of defendant's costs, if defendant's costs exceed plaintiff's;
if plaintiff's costs exceed defendant's, defendant to pay plaintiff's exceed-
ings." The question for us now to determine is, whether one or the other
of these cases is right. In Cooke v. Sat/er the decision is right, if we look
only at the Statute of Gloucester, But the Court, though referring to the
fourth section of the Statute of Anne, (4 & 5 Anne, c. 16,) which regulates
double pleading, does not seem to have adverted to the fifth section, which
relates to costs, and is in these words : — *< Provided, that if any such matter
shall upon a demurrer joined be judged insufficient, costs shall be given at
the discretion of the Court ; or if a verdict shall be found upon any issue in
the said cause for the plaintiff or demandant, costs shall be also given in like
manner, unless the judge who tried the said issue shall certify that the de-
fendant, tenant, or plaintiff in replevin, had a probable cause to plead such
matters which upon the said issue shall be found against him." Several
cases have been decided as to what is **an issue" upon double pleadings
founded on the Statute of Anne, and where the party would be entitled to
costs on such pleadings. Jones v. Davies and Wife (h) is one of those cases.
There '* the defendants had pleaded in assault and battery, first, accord and
satisfaction with the husband ; secondly, that what the wife did was in aid of
the husband ; thirdly, not guilty ; and, fourthly, son assault demesne. On
trial the verdict was on the two first-mentioned pleas for the defendant,
residue for the plaintiff, without any damages. No certificate from the
judge that defendant had probable cause to plead the two last-mentioned
pleas. The Court thought that it had no discretionary power, but was
bound by the 4 Anne, as the judge had not certified. The rule was there-
fore made absolute, that the plaintiff should have the costs occasioned by the
two latter pleas, and that the same be deducted out of the costs allowed the
defendants." In a case in trespass in Butlers Nisi Prius (c), the defendant
pleaded not guilty, and several justifications; upon the trial, the plaintiff not
proving his possession in the locus in quo, the defendant had a verdict, and by
direction of Denison, J. the verdict was entered upon the general issue only,
upon which there was a motion for a venire de novo. But the Court refused
the motion, saying, that the verdict was complete and determined the cause,
tliat the plaintiff was not entitled to damages, though they said that the
plaintiff might have insisted to have a verdict entered on the other issues
(a) Barnes, 141. (c) BartlH v. Sjyooner, Bull. N. P. 6tli
{h) Barnes, 140. edit. 335.
A
280 TERM REPORTS in the KING'S BENCH.
King's Bench. foT the sake of costs, which he would be entitled to unless the judge certified
^'^^/^^ that the defendant had probable cause to plead such a plea. The same case
is to be found in Barnes {a), and a similar rule is stated by Mr. Justice Buller
HiGciNsoN. to have been laid down in Dayrel v. Briggs in this Court in Trinity term,
25 Geo, 2. The cases of Duberley v. Page (6), Bennett v. Caster (c), and Hart
▼. Cutbush{d), all shew, that in the construction of the Statute of Anne, the
practice is to give the plaintiff costs of any issues on which he succeeds^
whether of fact or law, though on some other issue the defendant may have
judgment as on the whole record. The cases of Hovard v. Cheshire (e), and
Richmond v. Johnson (/), have been referred to as shewing what would be
the consequence in a case like the present, of a certificate granted by the
judge under the Statute of Eliz, But it is not necessary for us now to enter
on the discussion of that point, as one of the special pleas has been deter-
mined in favour of the defendant ; and Butcher v. Green (g), and Dodd v.
Joddrell {h ), shew that in such a case a defendant is entitled to the costs of
the issues found for him, unless the judge should certify. Vivian v. Blake {i\
supposed to be an authority contrary to those already mentioned, was an
action of trespass for breaking and entering the plaintiff's free fishery. The
defendant pleaded, first, not guilty ; and, secondly, that the said free fishery
was part of a navigable harbour, common to all the king's subjects. The
replication prescribed for a free fishery, and issue was taken thereon. On a
verdict for the plaintiff on the general issue, and for the defendant on the
prescription, it was held, that the latter going to the whole declaration, the
plaintiff was not entitled to costs. That case is correct if it is meant that
the plaintiff was not entitled to the whole costs of the cause, and we do not
understand but that that was the question ; but if it is meant that he was
not entitled to the costs of the finding for him, we think that he was entitled
to them. If the plaintiff is entitled to costs on the issues found for him,
then comes the question, what is the meaning of the costs of issues ? Brooke
v. Willet {k\ and Folium v. Simpson {I), may be referred to as shewing that
with respect to this matter the same rule has been applied to a defendant in
replevin as elsewhere to an ordinary plaintiff. We notice these cases because
they are both cases of replevin, and because, in 0/hir v. Calvert (m), a distinc-
tion was taken between actions of replevin and actions of another sort (n). In
that case the question, what are the costs of issues, came directly under discus-
sion, when the prothonotaries of the Court of Common Pleas difiered upon the
subject, and Mr. Justice Park said, that " the costs of the issues included
only the costs of the pleadings on those issues," and he referred to Bennett
v. Coster and Vivian v. Blake, as supporting that view of the case. Yet it
had in substance been differently stated by Mr. Justice Buller in Duberley v.
Page, But in Hart v. Cuthush (o) it was again considered, and Olhir v.
Calvert was there cited and overruled. One of the questions in that case
was, whether the plaintiff, who had succeeded on some of the special pleas.
(a) Barnes, 461. (k) 2 H. Bl. 435.
(6) 2 Term Rep. 391. (/) 2 Uos. & Ful. 368.
(c) 1 Brod. & Bing. 465. (m) 8 B. Moore. 239; 1 Bing. 275.
(d) 2 Dowl. P. C. 466. (n) See Coofc v. Gre^n, 5 Taunt. 594, where
(<) Sayer, 260. the defendant in replevin was held entitled to
(/) 7 East, 583. deduct the costs both of the pleadings and
(g) Doug. 677. tiial of those issues which were found for him.
{h) 2 Term Rep. 235. (o) 2 Dowl. Prac. Cas. 456.
(i) 11 East, 263.
TRINITY TERM, 1836.
28]
Bird
t'.
HiGCINSON.
though he failed on the general issue, was entitled to the costs of the plead- King*s Bench,
ings alone, or of the pleadings and witnesses on the issues on which he suc-
ceeded ; and there Mr. Justice /. Parke, referring to a case of the Duke of
Nexvctutie v. Green, where the defendant put thirty-five special pleas on the re-
cord, said ** if the plaintiff is entitled to the costs of the pleadings, why should
he not he entitled to the costs of the witnesses in support of them/' This
point was also in some manner before this Court in Spencer v. Hamerton (a),
and we now, as then, entirely concur in the view which Mr. Justice Parke took
of this matter ; and we think, that a party entitled to the costs of the pleadings
on any issue found for him is entitled to all other expenses incident to those
pleadings and occasioned by them ; and in Yates v. Gun (6), we find that that
was assumed to be the rule, for there the plaintiff was allowed the costs of
the trial. Then another objection raised in this case is, that the plaintiff
ought not to have taken the issue down to trial till after the demurrer had
been decided. But a party has a right to take his issue down to trial as soon
as possible ; it is expressly so held by Mr. Justice Bulier, upon an objection,
the opposite of this, taken in Duberley v. Page (c). That objection, therefore,
is at an end, though, if in itself available, it would be put an end to in the pre-
sent case, for Mr. Justice Patteson was applied to, and refused any order to
stay the trial till the demurrer had been argued. On the whole, therefore,
we are of opinion that the rule for reviewing the taxation must be dis-
charged.
(o) 1 Har. & Wol. 700.
(6) Barnes, 141.
(c) 2 Term Rep. 391.
Peacock, Assignee of J. Jones, v. Harris.
A SSUMPSIT for work and labour done and materials supplied by the
insolvent. Plea : firsts non assumpsit ; secondly, that as to 28/. Is. (yd,
parcel, &c., the insolvent, before the time of petitioning for his discharge
under the Insolvent Act, was indebted to a person named ff^orley, and had
agreed to assign over to him his effects, &c. ; and that the defendant, at the
time of the making of the indenture of assignment, was indebted to the in-
solvent in the sum of 2SL 7s. 6d. and no more ; and that one of the debts so
assigned to IVorley was the debt owing from the defendant to Jones, and that
the defendant paid to JVorley a certain sum of money, to wit, &c. in dis-
charge of the same, which IVorley received in full satisfaction and discharge
thereof. Replication, that the deed was made by the insolvent with the in-
tention of petitioning the Court for the Relief of Insolvent Debtors for his
discharge. Rejoinder, taking issue thereon. The cause was tried before
Mr. Baron Bolland, at the spring assizes for Denbigh, in 1 835, when it ap-
peared that the deed referred to in the pleadings was made by John Jones, on
the 1st o£ January y 1833, and at the trial it was proposed to give in evidence
certain declarations of the bankrupt made in the month o£ April, and ex-
plaining his intentions in making the deed. The learned judge received the
evidence, and a verdict was found for the plaintiff, damages 30/. A rule
for a new trial had since been obtained, on the ground that this evidence had
been improperly admitted.
I1ie declarations
of an insolvcDt
made at the time
of 6Hng his sche-
dule to obtain his
discharge under
the Act for the
Relief of Insol-
vent Debtors, are
not receivable in
evidence, in order
to show tliat a
deed of assign-
ment, executed by
him some time
previously, was so
executed with the
view or intention
of petitioning for
his discharge.
John Jcrvis, shewed cause. — The statements of the insolvent here were
282 TERM REPORTS in thi KING'S BENCH.
King*s Bench, properly admitted in evidence, with a view to shew that the deed wa« nuule
v^v^> by him with the intention of petitioning for his discharge. If so, the deed
Peacock ^as void under the 7 G, 4, c. 57, s. 32, This case must be governed by that
Harris. of Ridley V. Gyde{a). In that case a trader being pressed for payment of a
debt by the attorney of a creditor, promised to give a security on die follow-
ing day, instead of which he left his place of residence, and immediately
afterwards gave securities to another creditor, a relative, and it was beid that
the declarations of the debtor, in a conversation held a month afterwards
with the attorney of the former creditor, were admissible in evidence to sup-
port an alleged act of bankruptcy, by way of fraudulent preference, and to
shew the conduct of the party giving these securities, although it was ob-
jected that the conversation took place in the absence of the person giving
them, and at too great a distance of time from the completion of the trans-
action. Evidence was given in this case to shew that the insolvent had been
guilty of fraud. That made all that he said admissible against the parties
whom he had constituted his trustees. There was a case in the Exchequer
where there was an issue taken under the Interpleader Act (6), on the ques-
tion in whom certain goods were vested. They had been originally vested
in A.^ and his declarations were held to be evidence against those who claimed
from him, conspiracy and fraud on his part having been shewn. Then as to the
time at which these declarations were made in the present case. In Ridley v.
Gyde^ declarations made more than one month after the time were admitted.
There are other cases on the same subject. The first is Vacher v. Cocks (c),
where the declarations of the bankrupt made at the time of the transaction^
though unconnected with it, were held to be admissible ; and the second,
Herbert v. Wilcox (d), where a declaration of an insolvent, made at the time
of paying some money to a particular creditor, were received to shew the
circumstances he was in when he made the payment. These cases, and an-
other, Newman v. Stretch{e)t where the declarations of a bankrupt on his
return, that he had absented himself to avoid a writ against him, was held
sufficient evidence of the act of bankruptcy, all shew that when a bankruptcy
is set up, declarations of the bankrupt, though made after the time of the act
of bankruptcy, are admissible in evidence to explain it.
A. F. Richards. — The declarations of the insolvent are not admissible in
evidence in this case. The schedule is the only declaration made by him in
order to entitle himself to his discharge, and is the only evidence of his in-
tention. Ridley v. Gyde, requires again to be considered, for it is opposed
to the clear rule of law, that declarations are only receivable in connection
with an equivocal act which they are required to explain ; and besides this, it
was not an unanimous decision of the Court. In Newman v. Stretchy the de-
clarations admitted in evidence were part of the transaction itself, and the
statement of the bankrupt was also necessary for the purpose of explaining
what was otherwise a doubtful act. In the present case the deed is dated 1st
o( January, 1838. The declarations were made long afterwards. Suppose
that no bankruptcy had intervened, the title of the defendant was mature by
the deed. The deed required no explanation. The imprisonment, when these
(a) 2 Moore & Scott, 448 ; 9 Bing. 349. (e) Moo. & Malk. 353 ; 1 Barn. & Ad. 145.
(6) The name of the case was not men- (d) 3 Moore & Pay. 515 ; 6 Bing. 203.
tioned. (e) Moo. & Malk. 338.
TRINITY TERM, 1836. 283
declarations were made, took place in Jpril, and four months afterwards this King's Bench.
Court is called on to admit declarations of the insolvent as to his motives at a ^^n>^/
time so long gone hy. There is no allegation of fraud in the plea ; there should Peacock
have been such an allegation if that question was intended to be raised. Harris.
Lord Denman, C. J. — Afler the decision which has taken place in the
Court of Common Pleas, we must look into the question.
Cur. adv. vult.
Lord Demman, C. J, — The question in this case was, whether the schedule
of an insolvent debtor was to be taken as sufficiently explanatory of his in-
tention in making, some time before, a deed of assignment of part of his pro-
perty, or whether declarations made after the execution of the deed could be
admitted in evidence to explain that intention. According to the case of
Ridley v. Gt/de, these declarations would be admissible, but that case is dis-
tinguishable from the present, for there the declarations were in explanation
of former discussions between the parties on the same subject, here they are
made, accompanying an act done under a statute alio intuitu. But if this
case did resemble Ridley v. Gyde, so as to make one an authority for decid-
ing the other, we should be bound to say, that we do not agree with that
case. All declarations contemporaneous with the act are receivable, but the
act having been once done, no subsequent declarations can be received in
evidence. The schedule was receivable, not the declarations. There must,
therefore, be a new trial.
Rule absolute.
Clay v. Bowler.
^11 IS was an application on the part of the defendant to be discharged A prisoner who
from custody in this suit, under the 48 Geo. 3, c. 123, he having been in J^ ^^^e^ecu^Sin
custody more than twelve months in execution for a debt of less than 20/. for more than
The affidavits stated that the defendant had been charged in execution in for'l^ddbM«i
the month oT November, 1836, on a debt for 14/., the costs amounting to 28/.: than 20/., being cn-
that the defendant had real property to the amount of 35/. a-year, and that J his diwrha^e
he had been in gaol from the time of his first imprisonment to the present »>nderUie48 0. 3,
moment. In 1835 he had been brought up under the compulsory clause of has pi^iousiy,
the Lords' Act, but refused to give any account of his property, declaring ^^*° «^ought op
that the plaintiff should never get a shilling. Since then he had become poisoiy clause of
lunatic, and the present application was made on his behalf by his next ^JuJ^^Jj,' deUver
friend. in m schedule,
the application for
the discbarge may,
Whitehurst shewed cause against the rule. — The prisoner here has not ifthe prisoner him-
complied with the provisions of the statute 48 Geo. 3, c. 123, under which be made by'hts'
this application is made. That statute declares, that prisoners confined for "•«* friend,
debts less than 20/. " shall and may, upon his, her, or their application for mission oft unacy
that purpose, in term time &c., be forthwith discharged." Here the appli- ^^ ^^^\ " e'
cation is not made by the party, but by his next friend, he himself, since he been appointed,
was brought up under the compulsory clause in the Lords* Act and refused
284 TERM REPORTS in the KING'S BENCH.
King^t Bench. ^^ Sissiga over his property, having become lunatic. This is not sufficient :
v^vi^ the statute does not mention that any one may apply for him. The Court
Clay will not favour this application, for if the defendant is now discharged on
P^^* this application, the plaintiff will have no remedy whatever, for no assign-
ment can now be made of his property. The provisions of a subsequent
statute, 7 Geo. 4, c. 57, s. 73, expressly directed to the cases of lunatic pri-
soners, imposes on them, as a condition of their discharge, the vesting of
their property in the hands of the assignees. The object of that condition
will be defeated if this application is successful.
V. Williams, in support of the rule. — The question of a prisoner's right to
his discharge under the 48 Geo. 3, c. 123, has already been expressly decided
in Stacey v. Fieldsend^a)^ and Ex parte White (b), where it was held, that a
prisoner in custody for debt or damages not exceeding 20/., was, under that
statute, entitled to his discharge as a matter of right, though he had pre-
viously refused, when brought up under the compulsory clause of the Lords*
Act, to deliver in a schedule. The same point has also been decided in
Langdon v. Rossiter(c\ and Wood v. Kelmerdine{d). The abstract point,
therefore, which is now to be considered, is, whether a lunatic may, by his
next friend, take advantage of the statute. It is true that the statute does
not expressly mention that any one may apply for him, but this case comes
within the spirit of the act, and the court will not on a mere matter of form
put a debtor of sound mind, who refuses to deliver up his property, in a
better situation than one of unsound mind who has made the same refusal.
The law allows guardians to infants, and on the same principle will re-
cognise the act of a next friend for a lunatic, and will treat this as the
application of the lunatic himself.
Lord Denman, C. J. — The question here is, whether this is an application
of the prisoner within the terms of the statute. He himself is a lunatic,
and the application is in fact made by his next friend. In an ordinary case
that would not be sufficient, but in the case of a lunatic it is so. It would
be a violent thing to say, that under such circumstances a mere form shall
deprive a man of the benefit intended to be given him by a statute.
LiTTLEDALE, J. — The party himself is not in a state to make an appli-
cation. Perhaps, in strictness, this application could not be made till a
commission of lunacy had issued, and a committee had been appointed ; but
we must consider the object of the statute, which was, that no man should
be kept in prison more than twelve months for a debt of less than 20/. We
cannot defeat that object by a difficulty of the sort raised in the present case.
Patteson, J. and Williams, J. concurred.
Rule absolute.
(tt) I Dowl. Prac. Cas. 700. (c) M*CIel.6; 13 Price, 186.
(6) Id. 66. (rf) 2 Y.& J. 10.
TRINITY TERM, 1836. 285
King's Bench.
Doe d. Hurst v. Clifton and others. ^■^^'^
Doe d. Orchard v. Stubbs.
¥N Easter term a rule was obtained, calling on the lessors of the plaintiff to a party appij-
shew cause why it should not be referred to the Master to ascertain what Lnce'cf oie coort
was due for principal and interest on a certain mortgage deed, dated the 1 2th nuder the 7 o. 9,
day of February, 1834, on which the verdicts in these causes respectively l\u<^»^t^
were obtained, and why the Master should not have power to call for such ^e-couvey the
deeds, papers, and vouchers, and examine such persons vivd voce as he should mises, mu»t be the
see fit, and also to tax the lessors of the plaintiff* their costs; and why James ve^rtjenuued
Orchard, in the affidavit in the said rule named, or his assignee, should not also the defendant
accept the amount of such principal, interest, and costs, in discharge of the I" ^*/{n*^J^*"„
said mortgage, and execute a re-conveyance of the mortgaged premises, and has been com.
deliver up all deeds relating thereto to Thomas Neathy Stubbs, in the said "uX^Jedligeiit
affidavit also named, or to whom he might appoint ; or why, in case of » not within Uie
refusal, by the said James Orchard, or his said assignee, so to do, the said jutute^"*
money should not be paid into Court to abide the further order of the Court,
and that in the meantime proceedings be stayed, and that the posteas in these
causes be retained by the associate. The affidavits filed by Mr. R, Stubbs^
by whom the application was made, stated, among other things, that these
causes were tried at the last assizes for the county of Hertford, and that
the verdict was for the plaintiff in Orchard's ejectment; that the title
of the said James Orchard was founded solely on a mortgage deed, pur-
porting to bear date on or about the 12th day of April, 1824, whereby
Mr. Thomas N, Stubbs, therein described as resident in this country, but who
for several years last past has resided at Fort St, George in the East Indies,
and who was then entitled under the will of Thomas Ncatby, Esq. deceased,
to the premises in question, in reversion, expectant on the decease of the
survivor of two tenants for life therein named, conveyed his reversionary
estate and interest in the said premises, and also in certain other property,
unto the said Jamei Orchard, then an attorney of this Court, to hold to him
the said James Orchard, his executors, administrators, and assigns, but by
way of mortgage, nevertheless, and subject to redemption on payment by
the said Thomas N, Stubbs to him or them of the sum of 200/. with lawful
interest, and which sum was composed partly of money advanced by Orchard,
but principally of law costs and charges which he had against the said
T. N, Stubbs, as his attorney and solicitor, and that both the said tenants
for life are dead : that the deponent is advised and believes that the said
T. N. Stubbs is the proper party, and has just right to redeem the said mort-
gage, and that deponent is duly authorized to act for him in this behalf:
that no suit in equity, to the knowledge and belief of deponent, is pending
to foreclose or redeem the said mortgage, or any part thereof: that judgment
has not been signed in either of these causes : that although the said Thomas
N, Stubbs did not defend these actions as landlord, the plaintiff alleged at
the said trials, that tlic same were in effect defended for him and to protect
his interest, and that he had identified himself therewith ; and the said judge
who tried the said causes held, upon the evidence adduced, tliat the defend-
ants were to be treated as tenants of the said Thomas N. Stubbs, and upon
that ground precluded them from setting up a prior mortgage of the pre-
mises executed by him, in consequence of which a verdict passed for the
286
TERM REPORTS in the KING'S BENCH.
King*8 Bench,
Doe d. Hurst
V.
Clifton
and others.
Dob
d.
Ob CHARD
V,
Stubbs.
plaintiff on the said James Orchard's demise, which verdict this Honorable
Court has refused to disturb. A supplemental affidavit, filed since the rule
had been obtained, stated that a suit for foreclosure was now instituted.
Ae% and Petersdorff shewed cause against the rule. — This is an applica-
tion founded entirely on the 7 G, 2, c. 20 (a), which must therefore be
strictly complied with. It has not been complied with in the present case.
The applicant is not the party entitled to redeem, nor is he the defendant
in the action, nor is liable to costs. He is not therefore in a situation in
which to call for the assfstance of the Court. This is not a matter for the
discretion of the Court, but is to be decided by the terms of a statute which
must be strictly pursued, for the powers thereby given to the Court are very
extensive. They enable the Court not only to set aside proceedings in an
action, but to call for all papers and documents and to compel their delivery
over from one party to another and the reconveyance of the estate itself. The
plaintiffs here have given notice to the other side that the right to redeem,
and that the amount of the sum due, are both disputed. This Court, there-
fore, will not interfere under such circumstances. Goodt'ttle d. Taysum v.
Pope (Ji) and Goodt'ttle d. Fisher v. Bishop (c).
Flatty in support of the rule. — The case of Goodtitle d. Taj/sum v. Pope is
not in point. The party there precluded himself from making the applica-
tion, by having agreed to convey his equity of redemption to the mortgagee.
There has been no such agreement in the present case. On the contrary,
the right to redeem is expressly reserved. The other case is also inappli-
cable, for Orchard here has no right to dispute the title of the party to re-
deem. If the mere assertion that the right to redeem is disputed, is to
furnish an answer to an application like the present, the provisions of the
statute will be utterly useless, for any party who wishes to retain the estate
will deny the existence of the right to redeem, and thus prevent the opera-
tion of the statute. As to the other objection, that the applicant here is not
himself the party entitled nor the defendant, he is the agent of the party
entitled, and has been in substance the defendant. He is ready too to comply
with the provisions of the statute, and to bring into Court the principal
money, interest, and costs. The whole object of the statute will be defeated
(a) By which it is enacted, that *' If the
person or persons having right to redeem such
mortgaged lands, tenements, or hereditaments*
and who shall appear and become defendant
or defendants in such action, shall at any time
pending such action pay unto such mortga-
gee, or in case of his refusal, shall bring into
Court where such action shall be depending,
all the principal monies and interest due on
such mortgage, and also all such costs as have
been expended in any suit or suits at law or
in equity upon such mortgage, (such money
for principal, interest, and costs to be ascer-
tained ana computed by the Court where such
action is or shall be depending, or by the pro-
per oflB(xr by such Court to be appointed for
that purpose,) the monies so paid to such
mortgagee or brought into such Court shall
be deemed and taken to be in full satiiifaction
and discharge of such mortgage, and the Court
shall and may discbarge every such mortga-
gor or defendant of and from the same ac-
cordingly."
And by section 3 it is provided, ** That
this actor any thing herein contained shall not
extend to any case where the person or per-
sons against whom the redemption is or shall
be prayed, shall by writing under his, her, or
their hands, or the hands of his, her, or their
attorney, agent, or solicitor, (to be delivered
before the money shall be brought into such
Court of Law to the attorney or solicitor for
the other side) insist either that the party
praying a redemption has not a right to re-
deem, or that the premises are chargeable
with other or different principal sums than
what appear on the face of the mortgage or
shall be admitted on the other side, nor to any
case where the right of redemption to the
mortgaged lands and premises in question in
any caubc or suit shall be controverted."
(6) 7 Term Rep. 185.
(c) 1 Yo. & Jerv. 344.
TRINITY TERM, 1836.
287
if this objection prevail. The whole proceedings are in this Court ; this
Court therefore may properly make an order of this sort with respect to
them.
Lord Denman, C. J. — This is a case in which we may wish to have power
to grant the application, but we cannot give that power to ourselves, if the
statute has not conferred it upon us. The applicant here is not within the
terms of the statute, for he does not answer the most essential part of the
description there given of the party who is to make an application of this
sort, he is not a defendant in the proceeding in question, and there is an
obvious reason why he should be so in order to give him this advantage. We
cannot abuse the power we really possess by attempting to do what we are
required, when we have no legal authority to do it ; we must act solely on
the authority which the law has given us, and not, merely because the judg-
ment has been given in our Court, suspend the rights of the parties who are
entitled to it.
LiTTLEDALE, J. — It appears reasonable that the party now applying should
be relieved in the manner prayed for on the payment of principal, interest,
and costs, but the question is, whether we have power to do what he re-
quires. This Court interfered a good deal in the course of the last century
in cases of this sort, by sending such inquiries as these before the Master.
But the mode of proceeding in these cases is stated in the statute, and must
be strictly followed. We might refer it to the Master to state what is due
on the mortgage bond, but if the party applying does not bring himself within
the provisions of the statute, we have not power to assist him. He must be
the defendant in the action, and then he would be liable to all the conse-
quences of being so. There are particular provisions in the statute respect-
ing landlord and tenant, and the party must therefore pursue the particular
mode of proceeding there pointed out. He is required by the statute to be
a defendant, he is not so here, and I confine myself to that as the ground of
refusing his application.
Patteson, J. — We cannot get rid of the words " who shall appear and
defend in the action." These words cannot be disregarded.
King** Beueh,
Dob d. Hurst
V.
CLIFTOIf
and others.
Doe
d.
Orchard
V.
SruBBb.
Williams, J. concurred.
Rule discharged.
Gambrell V. Lord Falmouth and others.
1 N this case a question was raised as to what costs one of several defendants
should have upon his succeeding in the suit. 'I'he Master had only
allowed him his separate costs. A rule was obtained to review the taxation.
Per Curiam. — We think that we are bound by the case of Griffiths v.
Kynaston (a), which was considered and recognized in Griffiths v. Jones (b).
Those cases lay down this rule, that one of several defendants, if successful,
is to be allowed all his separate costs, and his portion of the joint costs,
imless the Master is satisfied that he has been indemnified.
Rule absolute.
(a) 2Tyr. 757. (h) 1 Gale, '254 ; 4 Dowl. Prac. Cas. 159 ; 2 Crom. M. & U. 333.
Where one of
sevenil defeDdtiiits
succeeds in « suit,
lie is to be allow-
ed not only his
sepnrate costs, but
his portion of tlie
joint costs, unless
the master is satis-
fied tliat he has
been indemnified.
(See the next
case.)
And where the
defendant has
288 TERM REPORTS m the KING'S BENCH.
King's Bench,
Cain v. Adams and Stanton.
A CTION on the case for an excessive and illegal distress. The decla-
been enutied'to ration contained four counts. Adams, the landlord, pleaded the general
certain costs, and issue as to the third count, and paid 40*. into Court in satisfaction of the
these have been .
deducted from the damages On the residue. Stanton^ the broker, pleaded the general issue to
Mdan^tf^rt!^' the third and fourth counts, and paid 40*. into Court on the first and second
given for the counts of the declaration. The cause was referred, and the arbitrator
money*ha8t^en directed that a verdict should be entered for the plaintiff against Adams on
previously paid by the first, sccoud, and fourth counts in the declaration, with 3/. damages for
hisattoniey.s^uch Adams on the general issue to the third count, and for Stanton on all the
money muBi be issucs. On the taxation of costs, the Master allowed the plaintiff the
the amount of the general costs of the cause, which he taxed at 81/., making with the
mihcetur, and the damages 84/. I he allowcd Stanton only such costs of the defence as had
hen of tne at- ^ ' i • i i •
tomey wiiibe been incurred exclusively on his account, and these he taxed at 13/. 10^.,
fiMuiiMcc* ^^^ ^® allowed Adams costs upon the issue found for him, and taxed them
at 20/. \5s. These two sums amounted together to 34/. 5s,, which the
Master deducted from the 84/., and then indorsed the balance, 49/. 15^.,
upon the record, and gave his final allocatur for that sum. It appeared that
Adams had been plaintiff in the Exchequer in an action against Cain, where
he obtained a verdict with SQl, damages, which, added to his costs in that
action, amounted together to 63/. 1 1^., and an order of a judge directed that
the damages and costs in the action in the Exchequer should be set off against
the damages and costs in the action in this Court, subject to the attorney's
lien for the costs in this action. When this rule had been made, the Master
called upon the plaintiff's attorney to shew what costs he had received on
the plaintiff's account. It was admitted that a sum of 19/. had been ad-
vanced to him by the plaintiff in the course of the cause. The defendants
contended that this 19/. was to be deducted from the 49/. \5s., leaving the
lien of the plaintiff's attorney upon the sum of only 30/. 15^. The Master,
however, thought that unless the payments by the plaintiff to his attorney
reduced the amount to less than that stated in the alhtcatur, the attorney
must be considered to have a lien on the costs for that amount. A rule
had been obtained for the Master to review his taxation of Stanton* s costs ;
to allow him one-half of the costs incurred in the joint defence, and to deduct
the sum of 1 9/. from the allocatur in this cause.
Sir IV. Follctt shewed cause, and Piatt was heard in support of the rule.
Per Curiam, — The rule is, that where there has been a joint defence, and
one of the defendants succeeds, he shall have all his separate costs and an
aliquot part of the joint costs, unless the Master sees some special reason why
that should not be the case. We adopted that rule yesterday in Gambrell v.
Lord Falmouth, As to the other point, it is clear that the attorney is only
entitled to a lien on the balance. The 19/. must be deducted.
Rule absolute.
*^* The Editors have to inform the profes- debted to Mr. Charles Clark for the reports
sioo» that, from circumstances connected with of the decisions in the full Court of King's
the publication of these reports, they are in- Bench, during Trinity term.
CASES
ARGUED AND DETERMINED
IK THE
COURT OF KING'S BENCH,
IN
Michaelmas Term, 1836.
REGULA GENERALIS.
JT IS ORDERED, That, from and after the last day of this Term, all Reoola
rules upon sheriffs, other than the Sheriffs of London and Middlesex^ Generalis.
to return writs either of mesne or final process, and rules to bring in the
bodies of defendants, be eight-day rules instead of six-day rules.
C Signed by the Fifteen Judges.)
Haywood's Bail. BaiiCtmrt.
f UMLEY, on the 19th of November, opposed these bail, and objected it is no objecUoo
that there had been an alteration in the bail-piece in the name of one of JhJ*t*!L^aiter»tion
the bail, and that no explanation was given of it except the initials of the <° ^« ^^^^ ^^
commissioner before whom the bail was taken being in the margin adjoining ^rs to h^e'Seo
the alteration. The name of the bail was originally written " Hayword,* but wade in the b«u
had been altered to " Haywood,** In the affidavit of the caption of the bail U^wc^wmiJ *
the name was Haywood. It was submitted, that the alteration misht have ■»on*" ^*»o ^^
J.J,.,. ^ , ® the bail being In
been made since the bau-piece was taken. the margin.
Cowling, contrd.
LiTTLEDALE, J. — I do not think that there was any necessity to give any
explanation of the alteration. The initials of the commissioner are in the
margin, and in the affidavit of caption the name is Haywood, and the altera-
tion camiot therefore have been subsequently made.
The bail were then allowed.
VOL. II. u
290
Bail Court.
Where a defend-
ant is a prisoner, a
two days* notice of
putting in and
justifying bail at
the same time,
need not state
that the defend-
ant b a prisoner.
TERM REPORTS in the KING S BENCH.
Pierce's Bail.
jyUSBY opposed these bail. — The notice of the bail justifying at the
same time they were put in, was given on the 15th of November for
the 17th, which is contrary to the rule of T. T. 1 IV. 4(a), requiring four
days* notice. It will be contended on the other side, that the defendant is
a prisoner, which takes the case out of that rule, but that fact does not ap-
pear on the face of the notice, or of any of the proceedings, and the Court
cannot take judicial notice of it. The case of Crightans bail (b) shows that
that ought so to appear.
J, Jervii, cofitrd. — In this case the defendant is a prisoner, and it has been
decided that the rule of T. T. 1 JF. 4, does not apply to prisoners (c). It
cannot be necessary that it should appear on the proceedings that the de-
fendant is a prisoner, as that is a fact known to the plaintiff. The case cited
was a decision of a single baron in the Court of Exchequer, and is not bind*
ing on this Court.
LiTTLEDALE, J. — It appears to me that this notice is sufficient, and for this
reason : by the old practice it would have been a good notice, then came the
new rule of T. T. 1 W, 4, requiring four days' notice, but that rule has been
held not to be applicable to prisoners. The practice, therefore, is untouched
as to them. The plaintiff knows that the defendant is a prisoner, and can-
not therefore be misled. The case referred to deciding the other way was
not decided before the full Court, and it seems to me that I shall decide
according to the justice of the case by holding this notice to be good.
The bail were then examined and allowed.
(a) 1 Dowl. P. C. 102. (c) Daviet v. Grey, 2 Cromp. & Jerv. 309,
(6) 1 Cromp. & Mees. 335 ; 1 Dowl. 2 Tyr. 277 ; King's bait, 1 Dowl. P. C. 509.
P.C. 609.
Koiice of bail
given under the
fid rule of T. T.
1 ty. 4, most not
only state the re-
sidence of the hall
for the last six
months, but also
aver such was the
residence during
that time.
Holling's Bail.
W JERVIS asked leave to justify bail, notwithstanding a defect in the
• notice, which did not exactly comply with the 2d rule of T. T. 1 ^. 4 (rf).
The notice stated the bail to be a housekeeper, and that he resided in a cer-
tain place mentioned, but did not go on to say that he had been resident at
that placs for the last six months. He submitted that it must be assumed
he had resided there that time, and cited Fenton v. Warre (c) and an Anony-
mout case (/).
LiTTLEDALE, J. — I camiot asscut to those decisions. Time, however, may
be granted to amend.
Rule accordingly.
(d) 1 Dowl. P. C. 103.
C«) 1 Dowl. P. C. 295.
(/) 1 Dowl. P. C. 160.
MICHAELMAS TERM, 1836. 291
Bail Court,
Brown's Bail. ""^^^^
JM'ANSEL opposed these bail, and objected to the affidavit of justification Tiie affidHvitof
given under the 3d rule of T. T. 1 »". 4 (a), that it did not comply {"f;^,;;^^" „**{„
with the rule oiH. T. 2 W. 4. I. 5 {h\ there being no addition or residence tho mie or t. t.
of the deponents mentioned. He submitted that that rule extended to affi- S,ridditionanT
davits of justification of bail as well as to other affidavits. residence of the
deponent, as re*
quired by the rule
Fitxkerbert, contrd. of ff. t. 2 ir. 4.
LiTTLSDALE, J., thought the affidavit incorrect, but that it would only
have the effect of depriving the defendant of the costs of justification (c).
The bail were then examined and allowed.
(a) I DowK P. C 103. (e) See Carter'tbtuI, I Will. Wol. & Dav. 187 ;
(6) 1 Dowl. P. C. 184. Cripp'i bail, Id. 7. T. 1837 ; and the next case.
Rout's Bail.
n^HESE bail were examined and allowed. where the affida-
•^ vit of justification
, ^ ^ of bail did not
WUson then asked for the costs of opposition, as the affidavit of justifica- comply with the
tion did not conform to the 3d rule of T. T. 1 fF. 4 (rf), it being stated that ™l5r^l,1^om not
the bail's property consisted of stock-in-trade, good book debts, and house- *^^"b tii« value
hold furniture of such a value, but did not state the value of each part of descnptlousuf the
that property, as required by the rule. **'"'* property.
* * ' ' ^ ^ aud the bail were
allowed x—Htli,
Mantel, contrd, contended, that as the affidavit did not conform to the th«t '^e plaintiff
• •11 -t 1 /•••!?• was not entitled
rule, the defendant was not mtitled to be paid the costs of justification, but to the costs of op.
that that was no ground why he should pay to the plaintiff the costs of op- p®"'*°°'
position.
LiTTLEDALE, J., said that the plaintiff was not intitled to the costs of op-
position (e).
(d) 1 Dowl. P. C. 103. 187, and Cripp't hail, Id. T. T. 1837, and
(«) See Carter't bail, 1 Will. Wol. & Dav. the case above.
Doe d. Hodgson v. Summerfield and others.
^ T. WHITE moved for an attachment against the defendants for not where an award
paying costs pursuant to an award. There were three defendants, and JjfrndMU5h!)"rd
the award was, that each should pay one third of the costs. The only ques- each pay one third
tion was, whether it was necessary to have three separate rules or a joint one. {, neceaswylo*' *
have separate
_ <r mr i i rulei for attacit*
CoLBBiDOB, J. — You must have separate rules. menti for non.
payment.
Rules granted accordingly.
u2
292 TERM REPORTS in the KING'S BENCH.
Bail Court,
Ex parte Strong.
Hmi04u corpus to Q^EWELL applied on the part of Strong for a habeas corpus f directed to the
c«t(iru'id*et"a keeper of Ilchesier gaol, to take him into the Ecclesiastical Court at fVells,
yrr\x.d€amtMnac0 for the purposc of purging a contempt. — A suit having been commenced
Bcciwiaiucar " against Strong in that Court, he was taken into custody for contempt, and
Court lo purge a lodged in Ilchestcr gaol. By the stat. 53 Geo. 3, c. 127, for the better regu-
b/this Court to l^tion of the Ecclesiastical Courts, it is enacted, that the proceedings on the
the party himself. Yff'n ^^ contumacc Capiendo thereby given, shall be according to the provisions
of the Stat. 5 Eliz. c. 23. By that statute the writ is made issuable out of
Chancery^ and returnable into the King's Bench. This Court therefore has
jurisdiction in this case. — [^Littledale,J. — Has the sheriff returned the writ into
this Court ?] — No, he has not, but as the writ is returnable here, that is suf-
ficient to give this Court jurisdiction. — [Littledale,^. — Is there any authority
for such an application ?] — No, there is not, yet it is but reasonable it should
be granted, especially as made by the party himself, who has no other method
of purging his contempt.
LiTTLEDALE, J. —I cannot see that this Court has authority to do what is
now required, and no precedent has been cited of any similar application.
If I grant the rule it will become a precedent, the application must therefore
be made to the full Court.
Rule refused.
Sewell aflerwards applied to the Court of Chancery^ and the Lord Chan-
cellor granted the application.
Johnson v. Fry.
Judgment entered liWANSEL movcd, on the 5th of November, to enter up judgment on an
^nt^of "ttoralyT ^^^ Warrant of attorney. The affidavit stated, that the defendant had
OD an affidavit that been sccu alive by the deponent at the end of February, at Sidney, in New
been seen alive South fVales, and that the deponent arrived in this country in September. He
eight mouths pre- cited the case of Fursey v. Pilkington (a). The voyage to Sidney is ordinarily
"soutk w»ht. performed in about five months.
Cur, adv. vuU.
LiTTLEDALE, J., afterwards (November 11th) granted the rule.
Rule granted.
(a) 2 Dowl. P. C. 452 ; see also Haplexi v. Thornton, 2 Dowl. & Ryl. 12.
MICHAELMAS TERM, 1836. 293
Bail Cmirt,
MiLSTEAD V. NURSEY.
a
TURNER shewed cause against a rule for judgment as in case of non- The Court will
suit, and contended^ that as the action was for a small sum, only ^lelbr^tld^iBcot
21, I7s.f he was not bound to give a peremptory undertaking, but that the » in cau of non-
Court would discharge the rule, if the defendant did not consent to a stet Jn^^nght ^^be
processui. He understood that the Court o£ Exchequer had so decided a few recovered b small.
1 1 because the de-
days previously. fe„d„t ^m ^
consent to a sUt
Henderson^ contrct^ refused to consent to a $tet processus, and contended that
the Court had not power to discharge the rule.
Cur, adv. vuU.
LiTTLEDALE, J., afterwards (November 1 6th). — I have seen the barons of the
Exchequer, and they say that they have made no decision to discharge a rule
for judgment as in case of nonsuit, where the sum sought to be recovered is
small, if the defendant will not consent to a stet processus.
Rule discharged on a peremptory undertaking.
The King r. Hancock and others
JC^RLE moved, on the part of the prosecutor^ for a certiorari to remove cmunmri to re-
an indictment for keeping a gaming house, from the Clerkenwell Ses- ™<>^« •» »odict-
sions (a). There had been a similar indictment against the same defendant, a gaming-house
in which he was acquitted on account of the description of the house not '•'»^<* ^ ^«
being sufficiently accurate. Application had since been made to the sessions ft was suggested
to quash that indictment, which application had been refused. It was ex- ^•t^««5»*»"»
T ' r * ^ would arise ou an
pected that, on the trial of the present indictment, several questions would acquitui on a
arise as to the acquittal on the former indictment ; which he submitted was i^™hteh\he hmue
sufficient reason for the Court to grant a certiorari, ^•^ t>««n misde-
scribed.
LiTTLEDALE, J. thought it not sufficient ground for removing the in-
dictment.
Rule refused.
(a) See the stat 5 k 6 W, 4, c. 33.
The King v. Jones and another.
f^EORGE moved, on the part of the prosecutor, for a certiorari to remove cenicrmri to rc-
an indictment which had been found at the sessions in Shropshire, move an indict-
The indictment was for an assault on some gamekeepers of a justice of the sessions, on Uie
peace of the county. It was stated that the justice was himself interested 2J*"°J* ****' f "**
in the matter out of which the assault arose^ and that the gamekeepers terested in the
were at the time acting under the authority of the son of the justice. It JITl'wwrcutor.
294
TERM REPORTS in the KING'S BENCH.
J3ai7 Court,
The King
t'.
Jones and
another.
was submitted, that that was sufficient cause to induce the Court to allow
the indictment to be removed into this Court (a).
LiTTLEDALE, J. — You may take your rule (5).
Rule granted*
(a) See 5 & 6 W. 4, c. 33. (6) But see The King v. FelUnot, I Har. & Wol. 648.
A pf r»on, who
had been an at*
torney of the
Court of OreH
Seuiotu, and who
had been ad*
mitted an attorocy
of the Court of
Kimg't Bench,
undfrstat. 11 G.
4, and 1 W. 4, c.
70, cannot be
called on summa*
ri.'y to answer for
misponduct com>
milled when
an attorury of tho
Court of Grtat
SeuioM.
In re John Williams.
^HIS was a rule calling on an attorney of this Court to shew cause why
he should not answer the matters of an affidavit. At the time of the
imputed misconduct the attorney was an attorney of the Court of Great
Sessions in Wales^ but not of this Court. Since the passing of the act,
abolishing the Welsh Courts, 11 Geo. 4, and 1 W. 4, c. 70, he had been ad-
mitted an attorney of this Court, under the 1 7th section of that act.
V, Williams^ shewed cause. — A preliminary objection to this rule is, that
this is an application for the extraordinary jurisdiction of the Court over a
person, who, though now an attorney of the Court, yet was not one at the
time of the imputed misconduct. By the 11 G. 4, and 1 W, 4, c. 70, no
authority is given to this Court to exercise this power.
W. H. Watson^ contrit, — The act having abolished the Courts in Wales^
and allowed the attornies practising in those Courts to be admitted of the
Courts at Westminster^ it is to be inferred that this Court has now the same
jurisdiction over the Welsh attornies that the Court of Great Sessions would
have had.
LiTTLEDALE, J. — I think this Court has not that power. Had the act
explicitly enacted, that if the attornies had been guilty of any misconduct
this Court should take notice of, it would be otherwise. The only conse-
quence is, that in this case the extraordinary jurisdiction of the Court cannot
be exercised, and the party is left to his ordinary common law remedy.
The rule must be discharged with costs, as the applicant ought to have
taken care that the party against whom he applied was in fact an attorney of
the Court.
Rule discharged, with costs.
Ex parte Fryer.
ac"tJd fojToSe^o*? T^^^ ^" ^ '"^® ^^ *^^^^ cause why an attorney should not pay the ap-
the parties to an pHcaut the sum of 19/. 14«., pursuant to an undertaking he had given;
tlbt'^ti"h"un ^"^ ^^y ^® should not pay the costs of, and incidental to, the application,
dertaking to pay a A pcrsou named Baker held a farm of Fryer, and some disputes arose after
certain sum for hit
client in order to save Uie expense of a formal awartl, may be called on summarily to perform his under-
taiiing, although no cause was depending in the Court.
MICHAELMAS TERM, 1836. 295
Baker had quitted the farm as to the payment of rent, and as to the occupa- ^aii Court
tion, which were referred to arbitration, no action having been commenced. v^/<^;
The draft of the award was made by the arbitrator ordering Baker to pay £z parto
Fryer 19/. 14«. ; and on the last day on which the award could be made, Fryer.
Baker's attorney, who had attended on his behalf before the arbitrator, in
order to save his client the expense of the award, gave an undertaking to
pay that sum. The award accordingly was not drawn up. Several appli-
cations were made to Baker for payment of the money ; and on his neglect-
ing to do so, an action was commenced against him for the rent, and after-
wards notice was given to his attorney to pay the money pursuant to his un-
dertaking, which he refused to do. It did not appear whether the submis-
sion to arbitration had been made a rule of Court.
Piatt shewed cause {Nao, 2^d.) — This undertaking does not differ from
any other common undertaking, and the Court cannot compel this person
to perform it merely because he is an attorney of the Court, but will leave
the parties to their remedy at common law. There was no action depend-
ing in this Court, nor does it appear the submission to arbitration has been
made a rule of Court, and there is no authority therefore to shew that it is
a case in which the Court will exercise its extraordinary jurisdiction over its
officers. Moreover, Fryer^ by commencing an action against Baker^ has
made his election to sue him, and cannot now ask the attorney to perform
his undertaking. The object of this application is to enforce in this method
an undertaking which is void by the statute of frauds.
BarstoWf contrd, — There are many cases to shew that this Court has autho-
rity to enforce this undertaking, although it may be void by the statute of
frauds. In re Pater son {a), In re Graves (b), Iveson v. Coningtott(c), and
Sharpy, Hawker (d), are authorities for that position, as well as to shew
that it is not necessary there should be a cause depending in the Court. In
this case the attorney acted as attorney for Baker, and gave the undertaking
in his character of attorney, and for the purpose of saving his own client the
expenses of the award. There can be no objection to the Court exercising its
jurisdiction* because the applicant has also proceeded by action against
Baker, Cur, adv, vult,
LiTTLEDALE, J., aftcrwafds {Ncto, 25th) gave judgment. — In this case I
think, that, although the attorney was not an attorney in any cause, nor
was there any cause depending, yet that the case is within the rule laid
down in the case of In re Aitkin (e). The attorney has given a positive
undertaking, and he must therefore pay the sum of 19/. 14«. ; but as the
applicant has brought an action for the rent, I do not think that the attorney
should pay the costs of this rule. The rule must therefore be absolute,
without costs ; and on payment of the 19/. 14«. within a months the proceed-
ings in the action must be stayed.
Rule absolute accordingly (/).
(a) 1 Dowl. P. C. 488. (d) 2 Hodges, 113 ; 6 Dowl. P. C. 186.
(6) 1 Crorop. & Jerv. 374, note. («) 4 Barn. & Aid. 47.
(e) 1 Barn. & Cress. 160 : 2 Dowl. & (/) Ses the neit case.
Ryl. 307.
296
TERM REPORTS in the KING^ BENCH.
Bail Court.
The Court will
not saiaoMiriljr
compel ua ftttor-
nej to perform ao
undertaking given
by hint to indrm-
nifj a nominal
defendant iu an
ejectment.
Ex parte Clifton.
JpETERSDORFF (Nov. dd) moved for a rule to shew cause why an at-
torney of this Court should not pay two sums of money, according to
his undertaking. — Clifton^ who was tenant in possession of some premises,
was served with the copy of a declaration in ejectment, and, having no in-
terest in the premises, declined to defend the ejectment unless an indemnity
was given him. The attorney gave him the indemnity, and defended the
action as attorney for the landlord, Clifton heing made the nominal defend-
ant. The lessor of the plaintiff recovered, and Clifton was obliged to pay
the costs. In the case of Ex parte Moxon {a) the summary jurisdiction of
the Court was recognised, though the rule was refused. Many other cases
may be cited to the same effect. The person who gave this undertaking
having been the attorney in the cause, is a reason why the Court should in-
terfere, as he gave the undertaking in his character of attorney.
LiTTLEDALE, J. — In the case cited the attorney obtained the deed in his
character of attorney. This case also differs from In re Aitkin {b). Here
the attorney is only in the situation of any other person who gives an under-
taking, and must be sued by action. I am clearly of opinion it is not a
case in which this Court can interfere in a summary way ; but application
may be made to the other Court if it is desired.
Rule refused (c).
(a) 1 Dowl. P. C. 6 ; and see Ex parte
Cohen, \ Harr.&Woll 211.
(6) 4 Bam. & Aid. 47.
(e) See the previous case.
An attorney who
took a bill of ex-
change from a de>
feodant, in order
to settle the plain-
tiff's billofcosto,
and who omitted
to do so, but
made use of the
bill of exchange,
cannot be called
on to answer the
matter on affida*
vit.
Ex parte Scott.
d^ODSON applied for a rule, calling on an attorney to answer the matters
of an affidavit. The party on whose part he applied was the defendant
in an action in which judgment had been recovered against him. The at-
torney against whom the rule was sought, who was not the attorney in the
cause, sent him a message, saying, that if he sent him a bill of exchange for
the amount he would settle the plaintifTs bill of costs. He accordingly sent
him the bill of exchange, but the attorney omitted to pay the bill of costs,
and put the bill of exchange into circulation. The defendant had since
been obliged to pay the bill of costs. He submitted, that as the attorney
obtained the bill of exchange in his professional character of attorney, it was
a case in which the Court would exercise its summary jurisdiction.
LiTTLEDALE, J. — I do uot think those circumstances are sufficient. He
has done nothing criminal in the administration of justice.
Rule refused.
MICHAELMAS TERM, 1836. 297
Bail Cmirt,
Clifford v. Parker.
"jDUTT applied for a rule, calling on the defendant and his attorney to StmUt, au attor-
shew cause why the attorney should not answer the matters of an aflS- ^nedon*to*To-
davit, and why the rule for the allowance of bail should not be discharged, *^^r tiie matten
and a new writ of capias issue, on affidavits shewing malpractice in the at- shewing maVprac
tomey in hiring the bail. He submitted, that although there was no direct ^^ **> *»""*"8 *>•"•
authority to shew that under such circumstances the Court would call on
the attorney to answer the matters of an affidavit, yet that it was gross mis-
conduct; and that the Court of Common Pleas having intimated that any at-
torney acting in this way should be struck off the rolls (a), it was a case in
which the Court would exercise its summary jurisdiction over the attorney.
LiTTLEDALE, J. — I cannot grant the rule, there being no authority for me
to do so ; but I will give leave for an application to be made to the full Court.
Butt aflerwards applied to the full Court (6), and a rule nisi was granted ;
the point however was never discussed, as the matter was settled.
(a) In Dieat y. Wame, 2 Dowl. P. C. (6) Lord Denman, C. J., PatUson, Wil-
812 ; 4 M. 6l Scott, 470. lianUt and Coleridge, Js. were ia Court
Black v. Cloup.
t^ HUG HE S, having moved on a previous day to make a rule to com- service of « rule
pute absolute, on an affidavit which Littledale^ Z . thought insufficient *m» to compute, at
for not stating what inquiry had been made for the defendant, renewed his where the defend-
application on a fresh affidavit. It now appeared that there had been per- T^^^^^^^^
sonal service of the writ of summons on the defendant, and, on inquiry for which he had left,
him for the purpose of serving the rule nisi to compute, it was found he u"**in Uje*jff«V
had lefl the house where he had been residing as a lodger^ and at which the BmcA office, held
writ was served on him. Nothing could be learnt, from the inquiry which •"®*^*"'^
had been made, of his present abode, but the landlord of the lodging said he
thought he would return, as he had lefl some valuable things under his care,
but he did not know when he was likely to return. A copy of the rule
had been left at his lodging, and another had been stuck up in the King^s
Bench office.
LiTTLEDALE, J. — It is clcar that the copy has not reached the defendant,
nor is it likely to do so. The lodging does not appear to be his regular place
of residence. The rule cannot be made absolute.
S. Hughes on a subsequent day again renewed his application, on the
authority of the cases of Sealey v. Robertson (c), and Payctt v. Hill (rf).
Coleridge, J. — You may tjike your rule.
Rule absolute.
(c) 2 Dowl. P. C. 568. (li) 2 Dowl. P. C. 688.
298 TERM REPORTS in ths KING'S BENCH.
Bail Court,
Matthews v. Sims.
Ad issue having A SHERIFF having applied to WtlUams^ J. at chambers, for an order
^dertirShsec- ""^®' ^^^ ^^^ section of the Interpleader Act, 1 & 2 fT. 4, c. 58, all the
tioQoftheiuier. parties attended, and took no objection to the want of jurisdiction of the
judge*»t^iinJ * j^^g® when sitting at chambers. An issue was ordered to try the right to
bm, and no ob- the goods Seized, but no order was made as to the costs. The issue went
thewanrof'jiris- ^o\9n for trial, and a verdict was found for the plaintiff.
diction of the
that it must be Busbtf uow applied for the costs. — If this is a case within the 6th section
Usue under uie** ®^ '^® Interpleader Act, it is necessary that this application should be made
act, made by con- to the Couft. That question depends on the particular circumstances o£ the
and'ujati^Uierefow ^s^» ^^® Order to try the issue having been made by a judge at chambers who
it was necessary has uot powcr Under the act to make the order. Such being the case, it may,
(LurUor'a ni!e perhaps, be considered as an ordinary issue, and not as one made under the
for the cosu of provisious of the Interpleader Act, and that, therefore, it is not necessary
to make this special application for the costs.
LiTTLEDALE, J. — As the Order was made by my brother JVilliams, you
had better apply to the full Court in which he is sitting.
Bushy renewed his application there accordingly.
Lord Denman, C. J. — It must be taken that the parties went by consent
before the judge at chambers, and, therefore, that he had all the authority
of the Court. The case, therefore, will be within the 6th section of the In-
terpleader Act, and a rule for the costs is necessary.
Patteson, Williams, and Coleridge, Js. concurred.
Rule granted.
Edwards v. Collins.
A misuiieiu the O^ *^^ ^^^^ of October last the defendant was served with a writ of sum-
copy served of a mons, and in the copy served the teste was by mistake " witness, &c.
iTthc ywr'ofUie '" the third year of our reign." The writ itself, it appeared, was correct,
iiiug's reign in Uie The eight days* time for entering an appearance having expired, the plaintiff
irreguinrity. entered an appearance pursuant to the statute. On the 4lh of November
the defendant obtained a rule nisi to set aside the copy and the service of
the writ.
Cowling shewed cause, and contended that it was a mere irregularity (a) ;
that the application ought to have been made within four days (6) ; and
(a) Sec Reg. Gen. Af. T. 3 W. 4, L 10, Harr. & Woll. 521, 4 D«wl. P. C. 283 ;
1 Dowl. P. C. 473. Chubb v. NichoUon, 1 Hair. & Woll. 666 ;
(6) See the cases of Ilinton v. Stevrns, \ ami Tifler v. OreeHy 3 Dowl. P. C. 439.
MICHAELMAS TERM, 1836. 299
that even if the defendant were entitled to the eight days within which the Bail Court,
appearance should he entered, still the application was too late. v^nrw
Edwards
Ball, contrdf contended that the copy served was a nullity, and not a mere Colliws.
irregularity, as it appeared from it that the writ must have long since ex-
pired (a), and that, therefore, the application was not too late (6).
LiTTLEDALE, J. — It is a mere irregularity, and the application is too late.
Rule discharged, with costs.
(a) Stat 2 W, 4, c. 39, s. 10. 3 Dowl. P. C. 551 ; Garratt r. Hooper, 3
(6) RobarU v. Spurr, I Harr. & Woll. 201, Dowl. P. C. 28.
Ranger v. Bligh.
TSSUE was joined in this cause in JiUy last, and notice of trial given for a pifUntiff bavtuK
the first sittings in this term. No countermand was given of that notice, S2°fo°l**^* .'ij
hut a fresh notice was given for the sittings after the term. situngs than he
WM obliged to do,
did not go to trial
C. C. Jones now moved for a rule for judgment as in case of nonsuit, as or countermand
the plaintiff had not countermanded his notice, and had not proceeded to glvea^frf »h noUce
trial according to it. He submitted, that the plaintiff, although he need not for ^« sittings
have given notice of trial until the sittings after the term, yet, having given it bound to go to
for the first sittings, he should have continued it from one sittings to another, 'r'"* :—&«•*/#,
and should not have passed over the second and third sittings in the term, u not entiUed to
LiTTLEDALE, J. — I do uot think there was any necessity to countermand
the notice. The case of Tyte v. Sleventon (c) is an authority against this
application, but if you think it worth while you may take a rule nisi,
C. C. Jones then declined to take a rule (d),
(c) 2 W. Black. 1298. (d) See the next case.
judgment as in
case of nonsuit.
Fell v. Tyne.
ISSUE was joined in this cause in Easter Term, and notice of trial was a plaintiff having
«,,. ii»i.. At 1.. given notire of
given for the adjournment day of the sittings after the term, there being inai for an earlier
no such day accordincr to the usual practice after that term. The plain- "'^^n^* ***■" **
tiff, of course^ did not proceed to trial, but without countermanding the did not counter-
former notice, gave a fresh notice of trial on the 2d of June for the 20th, "o?pr!!^e^**t^***
being the adjournment day after TVtni^y Term. The defendant then ob- trial, but gave •
tained a rule nisi to set aside the second notice of trial and subsequent thufsu^equeut
proceedings for irregularity, there having been no countermand of the utungs :— iKrM.
former notice, and on the last day of Trinity Term that rule was referred notice, and a"triai
to the Master. The plaintiff then proceeded to trial according to his notice, ""'**'' **» ^**^*
300
Bail Court,
Fell
V,
Tyne.
TERM REPORTS in thr KING'S BENCH.
and obtained a verdict the cause being undefended, although proceedings
were still going on before the Master under the rule referred to him. A rule
having been obtained this term to shew cause why the verdict should not
be set aside, and a new trial had, on the ground of irregularity,
Theobald shewed cause, and contended that the first notice of trial being
given for an earlier day than was necessary by the practice of the Court, it
was not necessary to countermand it before giving the second notice of trial,
and that therefore that notice, and the trial under it, was regular.
Steer, contrd, contended that there should have been a countermand of the
first notice.
LiTTLEDALE, J. — I think that a countermand of the first notice was not
necessary. The case of Tyte v. Steventon (a), though not exactly in pointy yet
in principle decides that a void notice is a nullity, and cannot be continued.
So here, I think, it was not necessary to countermand the first notice, which
was given earlier than was required by the practice of this Court (6). This
rule, however, may be made absolute to set aside the verdict on an affidavit
of merits, and on payment of costs.
The rule was then made absolute on terms.
(«) 2 W. Black. 1298.
(6) See the previous case.
Rule absolute, in
Uie first instance^
to increase the
issues on the re-
turn of a itu'
trimgui on a late
sheriff to sell
goods seised
under %Ji,/a,
NowELL V. Underwood.
A Testatum fieri facias issued to the late sheriff of Lincoln in January
last, to levy the sum of 22/. debt, and 30/. costs. The sheriff returned,
that he had seized all the goods of the defendant, and had sold part, and
that the rest remained in his hands for want of buyers. In Trinity Term a
distringas issued to the present sheriff to distrain the late sheriff to sell the
remainder of the goods. To this the present sheriff returned, that he
had distrained to the value of forty shillings.
Alfred S, Dowling now moved, on the authority of the case of Philips v.
Morgan (c), to increase the issues to the full amount of the original debt
and costs, as well as to the further amount of costs incurred by the delay of
the sheriff, and by the necessity of making the present application. He
submitted that he was entitled to 70/. under the circumstances, and that the
rule was absolute in the first instance.
LiTTLEDALE, J. — You may take your rule absolute to increase the issues
to that amount.
Rule absolute.
(c) 4 Barn, k Aid. 652.
MICHAELMAS TERM, 1836. 301
Bail Court,
Phillips v. Chapman. ''^"'^
n^HlS was an action for an escape, and the venue was laid in Middlesex, The The defendaDt
defendant served a rule to change the venue to Surrey on the usual affi- piea at th^ same
davit, and at the same time delivered a plea that the party did not escape, time that he senrea
A rule having been obtained calling on the defendant to shew cause why the tiie wnm. thougii
rule for changing the venue should not be discharged, ^u.^'t^ff **"*
^ which Will prerent
the plaintiff fn>m
Knonles shewed cause. —This rule is moved on the ground that the plea ^^'^^ ****^ ^»«
B '^ ^ vemtt oo an od-
cannot be delivered at the same time that the rule to change the venue is dertaking to give
moved, but the officers of the Court say that that is the usual practice. The J5^*tr^n(U***
case of Dickinson v. Fisher (a) is an authority for that practice, and there is county,
no hardship on the plaintiff.
R. V. Richards, contrd. — Formerly, the plaintiff could have brought back
the venue to Middlesex, on giving an undertaking to give material evidence
in that county. The defendant, by delivering his plea at the same time that
he served the rule to change the venue, has prevented the plaintiff doing
this, as it would be impossible to perform the undertakmg on the issue joined
on this plea, the King's Bench prison being in Surrey, Previous to the new
rules for pleading, requiring the issue to be taken on a single fact, this hard-
ship did not arise/
LiTTLEDALE, J. — My impression is, that there is no objection to the prac-
tice followed in this case, although by the new rules of pleading the plaintiff
is prevented giving an undertaking to give material evidence in the original
county. Besides, there is this difficulty, that if the rule to change the venue
had been first served, and then the plaintiff had given the undertaking, af^er
which this plea had been pleaded, the plaintiff would have been in the same
situation that he is in at present, and could not have performed his under-
taking. I thii>k the better way will be to discharge this rule, but without
costs.
Rule discharged, without costs.
(a) 2 Strange, 658.
Atkinson and others v. Clean.
"WM^ILSON moved for a distringas, but it appeared that on the first and An hour nott b«
second calls, at which appointments were made according to the usual 2^1l*di^'^hen
practice for the second and third calls, no hour was mentioned at which the ti»e aecond and
calls would be made. ?e*^aS! p,^oo.
to moving for a
LiTTLEDALE, J. — It is an invariable rule that an hour must be appointed, **^^'*'
as well as the day ; the rule therefore cannot be granted.
Rule refused.
302
Bail Court,
A suromoDs be-
fore a judge At
chambers, rrturua-
ble nt a time when
it b well knowa
no judge sits at
cbambertj canuot
be treated asa
nnllitj.
TERM REPORTS in the KING'S BENCH.
Byles v. Walker.
^HE defendant's attorney in this case obtained time to plead by consent,
on the understanding tliat no further time should be granted him. That
time having expired on the 3d of November, the defendant obtained on the same
day a summons for further time to plead, returnable before a judge at cham-
bers in Serjeant's Inn, at ten o'clock in the morning of the next day, being a
day in term. In term time no judge sits at chambers until three o'clock in
the afternoon. The plaintifTs attorney attended at the judge's chambers at
ten o'clock, when he found that there would be no judge there until the
afternoon ; he then, at eleven o'clock, signed judgment as for want of a plea.
On a rule to shew cause Why the judgment should not be set asidey with
costs, for irregularity,
Busby shewed cause, and contended that the summons having been made
returnable at the time when it was well known no judge attended at cham-
bers, was a mere nullity, and therefore did not act as a stay of proceedings,
and that, therefore, the judgment was regular.
Piatt, contrd, contended that the summons could not be treated as a nullity,
but acted as a stay of proceedings.
Coleridge^ J. — I think that the facts of this case do not make out that
any trick was intended to be practised by the defendant. His time for
pleading was out, and he obtained more time by consent, on the understand-
ing he should not have still further time ; if, therefore, he had applied again,
a judge would not have granted him more time. The only question there-
fore is, whether this summons was a nullity. I think the plaintiff had no
right to treat it as one. Though it is well known that at the time at which
it was made returnable, no judge attends at chambers, still the summons
should be treated as a good summons, as it is authorized by*a judge. The
plain tiflr ought to have waited until the time when a judge did attend at
chambers, when the summons would have been discharged. It would not
be convenient to allow parties to treat the summons of a judge as a nullity.
The judgment must therefore be set aside with costs.
Rule absolute (a).
(a) SeeSpenciley v. ShoaU, 1 Will.Wol. & Dav. 196; and WelU v. Secret, 2 Dowl. P. C. 447.
LyDALL V. BiDDLE.
IN a previous term an issue had been directed under the Interpleader Act,
1 & 2 Will. 4, c. 58, s. 6, Lydall being a claimant to goods seized under
an execution. Lydall had since refused to proceed to the trial of the issue.
R. V. Richards now applied to the Court to substitute Webb, who was
Where an iaane
ii directed under
tlie Interpleader
Act and Uie
claimant rcfutea
to proceed to trial,
anotheT claimant
cannot be sabsti-
tuted as party to the iuue without calling on the first claimant to shew cause against it.
MICHAELMAS TERM, 1836. 303
another claimant, as plaintiff in the issue instead of Ljfdallf he being desirous j^^^ Ceurt.
of trying the same issue, and the question was, whether, under the circum- v^v^
stances, Lydall could be barred without being brought before the Court. Lydall
CoLERiDOB^ J. — That would be barring him of his claim on affidavit, with-
out giving him an opportunity to shew cause, which, I think, cannot be done.
He must be served with a rule nisi.
Rule nUi granted to be served on Lydall^ but not on the sheriff.
V.
BiDDLB.
Newnham v. Hanny.
^HE declaration in this case was delivered on the 26th of October ^ but it An application
was dated on the 25th. On the 4th of NffOfmber, the plaintiff signed Jo^.^'^d?. X
judgment for want of a plea. On the 7th oi November y the plaintiff's attor- ciantion^on the
ney gave notice to tax the costs the next day, on which day the defendant's SJng dnedon***
attorney gave notice, that unless the plaintiff would consent to set aside the tbe day on which
declaration and subsequent proceedings, application would be made to the MrmLdeuIuithe
Court for that purpose. The plaintiff not having consented, a rule was ob- defendant had no-
tained, on the 9th o£ November, to shew cause why the declaration and judg- tiff having t^ken a
ment signed thereon should not be set aside for irregularity. subsequent step.
is too late.
J. J, Williams shewed cause. — The declaration in this case not having been
dated on the day on which it was delivered, contrary to the rule of H. T. 4
fV, 4 (a) is an irregularity merely, and the defendant ought to have applied
sooner to set it aside. In the case of Fynn v. Kemp (6), it was decided that
the application must be made before the next step is taken in the cause.
This application should therefore have been made before the plaintiff pro-
ceeded to sign the judgment and tax his costs. The defendant has not been
prejudiced by the irregularity, as the eight days* time to plead was allowed
to elapse afler the day of the delivery of the declaration before the plaintiff*
signed judgment. Horsley v. Purdon (c) is an authority to shew that the
attorney ought at the time of the delivery of the declaration to have objected
to the irregularity, which is another reason why this rule cannot be made
absolute. The declaration having been delivered to the party, the irregularity
must have been apparent to him.
Ckasby, contrd. — The case of Horsley v. Purdon is not applicable, for there
the objection was to the mere fact of a plea being delivered at all ; here the
objection is to the contents of the declaration, the irregularity of which it
could not be supposed the attorney should immediately discover. Next, as
to the time when ibis application was made ; the rule laid down by Mr.
Tidd (d) is, that where a party commits an irregularity it is unnecessary for
the opposite side to complain until he sees that the other party, by taking a
subsequent step, rely on the former step as if it were regular. That rule has
been complied with here, for as soon as the defendant knew by the notice to
(a) 2 Dowl. P. C. 313. (c) 2 Dowl. P. C. 228.
(b) 2 Dowl. P. C. 620, 4 Tyr. 990. {i) p. 614, 9th edit.
Newnhah
V
304 TERM REPORTS in the KING'S BENCH.
Bail Court, tax costs that the plaintiflT was proceeding as if the declaration was regular,
he made this application. The cases of Moffat v. Carter (a), Topping v.
Fuge{b\ Fletcher v. Wells (c), and Hill v. Parker (d), establish that position.
Hanny. — {lAttledale, J. — The cases of Smith v. Clarke (e), and Hinton v. Stevens (J"),
are against that position.] It is impossible to reconcile all the cases that are
reported on the subject. The last of those cases differed materially in its cir-
cumstances from the present.
LiTTLEDALE, J. — It IS quitc impossible, as has been remarked, to reconcile
the cases that are reported on this subject, nor is it necessary to lay down
any general rule ; but in this case, looking at the circumstances, I think this
application was made too late. It was a clear irregularity, as it did not com-
ply with the rule of Court, and as it may, moreover, have misled the defendant
as to the time he had for pleading. Had the plaintiff signed judgment eight
days afler the 25th, the day on which the declaration was dated, then there
would have been a second irregularity, for which the defendant might have
applied here, but that was not the case. Mr. Cleasby has cited many cases
where the rule is laid down that a party is not bound to apply until the next
step is taken afler the one in which the irregularity has been committed, but^
on the other hand, there are many cases where that rule has not been acted
on. It is therefore necessary to look to the particular circumstances of this
case. If this had been the case of a notice of a declaration being filed, then,
perhaps, the application would not have been too late, but here the irregula-
rity must have appeared at the time the declaration was delivered. The
defendant might have applied to the Court before the time for pleading ex-
pired, when his attention, most probably, must have been called to the irregu-
larity. I think on the whole, that the application was made too late, and
therefore the rule must be discharged, but without costs.
Rule discharged, without costs.
(o) 2 New Rep. 76. (e) 2 Dowl. P. C. 218.
(6) 6 Taunt. 330. (/)1 Hair. & Wol. 521 ; 4 Dowl. P. C.
c) 6 Taunt. 191. 283.
i
d) 2 Chit. Rep. 165.
Robinson v, Taylor.
iMue was joined ISSUE was jomcd m this cause on the 19th of May last, which was in the
Inn country cause a-^. -ri.rr^ t i .«.*
in Eaittr vacation vacatiou after Eastcr I erm. It was a country cause, and no notice of trial
and no notice of ^gg given for the summcr assizes. A rule having been obtained this term
trial was given for « ,° ^ • r •.
tiie next assises : lor judgment as in case of nonsuit,
-'BM, that the
defendant might . rr«i • i •
move for judg. Whttcman shewed cause. — This rule is applied for too early. The plaintiff
nomv^inMMLa^ " ^^^^ bouud to take one step in each term, and even admitting this issue is
mtu Term. to be Considered as joined in Easter Term, he had Trinity Term in which to
enter the issue, and therefore was not bound to give notice of trial until this
term. The judgment of BayUt/y B, in the case of fVingrove v. Hodson (g),
(g) 2 Dowl P. C. 379, 4 Tyr. 328.
MICHAELMAS TERM, 1836.
305
shews that this rule cannot be applied for until the third term after issue
joined. Douglas v. JVinn (a) is also an authority to the same effect.
Cooke, conird. — The case of PVilUams v. Edwards (6), is a case exactly like
the present in its circumstances^ and there the application was held not to
be too early. Smith v. Rigby(jc) is also an authority for this rule^being made
absolute.
Cur, adv. vuit.
Biil Court.
R0BIN90H
V,
Taylor.
LiTTLEDALB, J. afterwards {N'otember 24th) gave judgment.— This was a
rule for judgment as in case of a nonsuit in a country cause, moved in the
present term. Issue was joined in Easter vacation, and no notice of trial was
given for the assizes. The plaintiff objected that the defendant came too
soon, for the plaintiff was only bound to take one step in a term, and ad^
mitting that the issue being joined in Easter vacation was the same thing as
if it had been joined in Easter Term, he had Trinity Term to enter the issue
on record, and then he had Michaelmas Term in which to give notice of trial.
Though the rule of H, T. 2 ^. 4, 1. 70 (c/), says that no entry of the issue
shall be deemed necessary to entitle the defendant to move for judgment as in
case of a nonsuit, yet in Williams v. Edwards, Parke, B. says this rule is not to
vary the time of moving for judgment as in case of a nonsuit. Taking it
then according to the old practice, the course of the Court was, that the plain-
tiff might have been ruled to enter the issue in Trinity Term, and if he
omitted to do so, he was not to be in a better situation than if he had gone
on according to the course of the Court. At the end of Trinity Term, there-
fore, the cause was fully ripe for trial, and nothing more remained to be done ;
and as a trial in a country cause has nothing to do with the term, it was his
duty to have gone to trial at the summer assizes ; for it would be a most
singular course of practice if he was to be allowed to pass over the assizes and
wait till Michaelmas Term, and then give notice of trial for the spring assizes.
The case of Smith v. Bigby is in point, as well as the case of Williams v. Ed-
wards, above referred to. I am of opinion, therefore, that the defendant does
not come too soon, and that the rule must be made absolute. Several cases
were cited by Mr. Wighiman, but none of them are the same as the present.
I do not give any opinion as to what would have been the practice with the
same dates as to a town cause (e).
Leave was afterwards given to the plaintiff to produce an affidavit to ex-
cuse his delay, so as to entitle him to have the rule discharged on a peremp-
tory undertaking.
(a) I Har. & Wol. 662 ; 4 Dowl. P. C.
559.
(6) 3 Dowl. P. C. 183 ; 1 Cr. M. & Bos.
3 ; 5 Tyr. 177.
c) 3 Dowl. P. C. 705.
583 ; 5 Tyr. 177.
3 Dowl. P.
'd) 1 Dowl. P. C. 192.
f:
(«) See the cases of Rchint v. Eatt, 1 Will.
Wol. & Dav. 74 ; Fox v. M*CuUoc\c, Id.
183; Stacey y, JeffrifSt Id. 184; Revett if,
Hutchinson, Id. f.t. 1837; and Gough v.
Whiu, 1 Mur. & Hud. JS. T. 1837.
VOL. II,
306
TERM REPORTS ih the KING'S BENCH.
Bail Court,
1. An affidavit
in support of an
attachment for
nonperformance
of tlie award of
r. iraod, h J mis-
take stated a ser-
vice of the award
of T. fVard, there-
unto annexed :-—
Held, that the
mistake was im-
material;
£. Such an afTida-
vit need not state
that the time for
making the award
had been enhirged,
the eulargcmeiits
having been made
a rule of Court*
3. The award
directed the costs
should be borne
in equal moieties,
and that if either
parly paid tlie
-whole, tiie other
ilionld repay tlie
moiety ; the affi-
davit in support
of an attachment
for non-payment
of the moiety,
must state that
tlie party had paid
the whole, and it
is not sufficient to
state tliat the
other party was
informed that the
whole had been
paid.
4. Tlie award
having direaed
the delivery up
of a particular box
-which was a mat*
ter not specifically
referred to the ar-
bitrators, but
which had been
parted wiili before
tlie date of the
submission, an at-
tachment cannot
be granted for
non-performance
of that part of the
award.
Smith and Reeves.
npHIS was a rule for an attachment against Smith, for not performing an
award, by not paying two sums of 105/. 8^. lOd, and 30/. 4s, 9d,f and
by not delivering up a box near the London Docks, marked No. 5. Smith
and Reeves had been partners in business, which had been carried on at the
box No. 5, mentioned, and disputes arising between them, they were referred
to arbitration. The reference was of all matters in difference to two per-
sons, with power for them to appoint a third as umpire. Power was given
to enlarge the time for making the award, and the time was accordingly se-
veral times enlarged. T. Wood was appointed umpire, and the award was
made by him within the enlarged time. The award directed the payment
by Smith to Reeves of 105/. 8s. lOd,, and directed that the costs of the re-
ference should be borne in equal moieties, and that if either party should pay
the whole, namely, 60/. 9^. 6d,, the other party should repay him the moiety.
The submission to arbitration, and the enlargements of the time for making
the award, were made a rule of Court. On moving for the attachment, the
affidavit in support of it, of the service of the award, mis-stated the umpire's
name, stating a service on Smith of '< the award and umpirage of T, Ward,
hereunto annexed." The same deponent also swore that he saw the award
thereunto annexed executed. The award itself was of course correct. No
affidavit in support of the attachment was made of the enlargements of the
time for making the award. The affidavit as to the costs of the reference
stated, that Reeves's attorney had informed Smith that Reeves had paid the
costs of the reference, but there was no direct affidavit that Reeves had in
fact paid them. In answer. Smith swore that the box. No. 5, bad been sold
by him a year before the reference.
C C. Jones shewed cause. — The first objection to this rule is, that it does not
appear that Smith has been served with a copy of this award. The affidavit
states, that he has been served with the award of T, Ward, but the person
appointed umpire, and who made the award, was T. Wood, The next ob-
jection is, that there is no affidavit of the time for making the award having
been enlarged. Davis v. Vass (a), Wohlenherg v. Lageman (6), and Halden
V. Glasscock (c), are authorities to shew that such an affidavit is necessary.
There is, moreover, no distinct affidavit that Reeves has paid the costs of the
reference, therefore as to the sum of 80/. 4«. 9c/., being the moiety of those
costs, the attachment certainly cannot issue. As to the delivery of the box
No. 5, the affidavit of Smith shews that he had parted with it before the
reference ; and as it was not a matter expressly referred by name to the ar-
bitrator, he had not power to award that Smith should deliver it up.
JVilson, contrtt. — The mistake in the affidavit of service of the umpire's
name is immaterial, it being clear from the award itself, which is annexed,
that it was the award of the umpire T. Wood, The case of Dickens v. Jar-
vis (d), in which Halden v. Glasscock is cited, is an express authority to shew,
(a) 16 East, 97.
lb) 6 Taunt. 251 ; 1 Mareh. 579.
{
c) 5 Barn. & Cress. 390.
d) 5 Barn. & Cress. 528.
MICHAELMAS TERM, 1836. 307
that where the enlargement of the time for making the award is made a rule Bail Court.
of Court, it is unnecessary, on moving for an attachment, to have an affidavit v^/^
of the enlargement. That is a clear distinction between the cases cited on the Smith
other side and the present ; here the enlargement having been made a rule of Reeves.
Court, an affidavit of the enlargements has been already produced before the
Court. It appears by the affidavits that Smith had notice that Reeves had paid
the whole of the costs of the reference, and if the fact was disputed, it might
be suggested on the other side that it was not believed to be true. That is
not done, and the Court will therefore pronounce that what Reetes^s attor-
ney stated as to the payment is true. The possession of the box. No. 5,
was one of the matters disputed before the arbitrators, and he had therefore
power to make the award respecting it.
Cur. adv. vult.
LiTTLEDALE, J. aflerwards {Nov. 25th) gave judgment. — This was an ap-
plication for an attachment against John Smith for the non-])erformance of an
award, in not paying the sum of 105/. Ss, lOd. to William Reeves; and in not
delivering up to JVilHam Reeves a box, No. 5, near the London Docks, to
which were attached certain privileges ; and in not paying the moiety of the
sum of 60/. 9^. 6d, found due for costs. The parties, Smith and Reeves, had
been partners, and the business had been carried on at the above-named box
No. 5, and by agreements of the date of the 5th August, 1836, they agreed to
refer their partnership disputes to arbitration. The reference was to two per-
sons and such person as they should appoint to be umpire or to assist them
in the premises, so that the award of the two arbitrators and of such third
person as they should appoint, if any such should be so appointed, or any two
of them, should be made on or before the 5th of September; and with power
for the arbitrators, by writing under their hands, to be indorsed to the said
agreement, to enlarge the time for making their award as oflen as they should
think proper. And then the agreement goes on to state, that if the arbitra-
tors should not agree, the umpire might make the award, and that the sub-
mission to arbitration should be made a rule of Court. The arbitrators made
several enlargements of the time, and also appointed Thomas Wood as an um-
pire, who made his award and umpirage on the 9th of April, 1836, and or-
dered the several things before mentioned to be done. The original submis-
sion to arbitration, the several enlargements by the arbitrators of the time,
and the appointment of the umpire, were made a rule of Court in one rule.
The affidavits to ground the attachment were in the usual form, but in the
affidavit of the service of the copy of the award and umpirage, it is stated
that the person served JoAn Smith with a true copy *' of the award and umpir-
age of Thomas Ward, hereunto annexed,'' and at the same time shewed him
the original award and umpirage. The service of the other documents was
correct. In shewing cause against the rule for the attachment, Smith ob-
jected— 1st. That the service of the copy of the award and umpirage
was insufficient, as it stated it to be an award and umpirage of Thomas Ward,
instead of Thomas Wood : 2nd. That there was no affidavit of the fact of
the several enlargements made by the arbitrators : dd. That the box in ques-
tion. No. 5, had been sold by Smith before the submission to arbitration, and
therefore the arbitrators had no jurisdiction over it : and 4thly, As to the
moiety of the costs of 60/. 9s, Gd., which were to be borne in moieties,
x2
^
308
TERM REPORTS in the KING'S BENCH.
Bail Court
Smith
and
R£EVE8«
and if either party should pay the whole, the other party was to repay
him a moiety, that there was no affidavit that Reeves had paid the whole, and
that till he had done so^ he could not call on Smith to repay him a moiety.
As to the first objection, I think it is not tenable ; there certainly are cases
where the document served upon the party has varied in some slight degree
from the real name in the proceeding, as in The King v. Calvert (a), and se-
veral cases there referred to ; but there the process served on the defendant
was not correct, and therefore he was held not to be in contempt. But here
the document served on the defendant is correct, for the copy of the award
and umpirage is in the name of Thomas Wood ; and the defendant, therefore,
by the service upon him and refusal to pay, is in contempt, and the only ob-
jection is the verifying it to the Court ; and as to tliat, I think, as the affidavit
states that he was served with a true copy of the award, which is correct,
and was shewn the original, which is also correct, the name Thomas Ward,
which is inconsistent with that, may be rejected as surplusage. As to the
second objection, there are several cases where it has been held that the fact
of the enlargement must be verified by affidavit ; Davies v. Vass^ fFohlen--
burg V. Lageman, George v. Lousley(J))y Halden v. Glasscock. But in
Dickens v. Jarvis the rule is laid down differently, and Mr. J. Bayley says, " I
take it to be a matter of course, that where a submission to arbitration con-
tains a power to enlarge the time for making the award, and an enlargement of
the time is made a rule of Court, that is sufficient for the purpose of obtain-
ing an attachment, just as if the award had been made within the time ori-
ginally granted. This case differs from that which has been referred to, for
there the time was enlarged by a Judge's order, and that did not appear on
the face of it to be made by the consent of the parties ; it appeared to be
made proprio vigorejudicis, and therefore was not binding. Here the parties
agreed that an enlargement by the arbitrator should be valid. The Court
must have credit for not making it a rule ofCourt, without a sufficient affidavit.
If that were otherwise, every rule for an attachment for disobedience to a
rule of Court, must be a rule nisi," I certainly concur in the view taken by
Mr. Justice Bayley $ here all the various enlargements have been incorpo-
rated in the rule of Court, and it must be intended that the Court had proper
materials for making them so; the parties consented that the arbitrators
might enlarge the time, and the copy of the rule served on Smith apprises
him that they had pursued the authority which he and Reeves had given
them. As to the third objection, the box No. 5 was not specifically a sub-
ject of reference, but only as it was part of the subjects connected with the
partnership, and as it had been sold by Smith before the submission, it is not
to be considered as included in the submission, and as far as that goes the
attachment cannot be enforced. On the fourth objection, the award directs
that either party who pays the whole 60/. 9s, 6d. may recover the moiety
against the other ; there is an affidavit that Smith was informed that the
whole of the costs had been paid by Reeves, but there is no affidavit that in
fact they had been so paid, and therefore the attachment cannot be supported
as to the 30/. 9^. 6d. But as to the 105/. 8^. lOd., there is no valid objection,
and therefore as to that the rule may be made absolute, but the attachment
should lie a fortnight in the office. Although Reeves cannot recover the
(a) 4 TfTj^Ttj 2 Cromp. k Mees. 189 ;
9 Dowl. P. C. 276.
(6) 8 Eait, 13.
MICHAELMAS TERM, 18^. 309
SOL Os, 6d,, the moielv of the costs, under this rule, he is not to be shut out Bail Court,
of them altogether ; b:it as I think it would be vexatious to Smith to be
subject to two proceeding's under the award, I think Reeves must undertake Smith
not to sue out any writ or process, or take any proceedings against Smith for Ksivxs.
non-payment of the moiety of the costs, until the expiration of one calendar
month after a demand in wriiing for such moiety has been made by Reeves
upon Smith, to be served upon him personally, or led at his usual place of
abode ; and \£ Reeves will not gi^e such undertaking this rule to be enlarged
till next term.
Rule accordingly.
Wills r. Langridge.
n^HIS was a rule to enter a suggestion on the roll to entitle the defendant i.if«jai7fiD<]a
to double costs, under the Middlesex County Court Act, 23 G. 2, c. 33, iS^i*^' Uteh
the verdict being for less than 40*. The action was brought for 21. 2s,f for i»«daced below
business done by the plaintiff as a surgeon and apothecary, and for 1/. 4*. 4d, cooiton » point
as the balance due by the defendant for the sale of a mare, which the de- **^ **^ rnnred,
fendant had sold for plaintiff at Dixon's repository in Barbican, in the city of be deprived of7u
London. The defendant resided in High Holhorn, in the county of Middlesex. 2Siw°°** co****
The action was tried before the under-sheriff, under 3 & 4 /F. 4, c. 42, s. 17, Court Act,
and the jury gave a verdict for 3/. 0*. Id. beyond the sum of 5s. 9d. paid into teriai'uilt*the*'
Court, which, therefore^ was for the whole amount claimed. A motion was point or Uw eroee
afterwards made in Court to reduce this verdict by 21. 2s., on the ground JSn^fw^rwi^'
that the plaintiff had not proved he was a certificated apothecary, which he ^*^^^ ''^^^
ought to have done, although that fact was not pleaded. After hearing the MppiiedJ* ^
parties, the Court made that rule absolute (a), thereby reducing the verdict *• Amiecaa-
below 40*. eater « saggeetion
to deprive the
Humfrey shewed cause. — There are several objections to this rule being costs, under •. 19
made absolute. In the first place, the stat. 23 G. 2, c. 33, s. 19, says, that th.'J^"J^J|^lJ|^
where the jury find damages for the plaintiff under 40*., the plaintiff shall nrose within the
not be entitled to costs. In this case the jury found a verdict above 40*., !?""? ^^i^*^**
•^ •' ' UM, as well as the
and though it was afterwards reduced by the Court below that sum, yet that defendant resided
not being the finding of the jury, the case does not come within the clause 47where it ap.
in the act. Another objection is, that by the stat. 23 G. 2, c. 33, s. 4, it is p^^ed that Uie
enacted, that no person shall be liable to be summoned to the said County iq jSJoMg, but
Court, except he were liable to be summoned to the County Court of Mid- ** *^'** "®^ appear
dlesex before the act, and that the act should not give jurisdiction over any acUon arose; tiie
cause, except such cause as the County Court of Middlesex might have held 9**"*!* presumed
plea of before the act. Now, previous to the passing of that act it was mmiuu, and
necessary that the defendant should be living within the jurisdiction of the J^J|*"i°**t^
Court, and that the whole cause of action also should arise within the juris- solute,
diction; Tuhh v. Woodward (b). Here, although the defendant lived within no*i>jSiiSi to**
the jurisdiction, it must be presumed that that part of the cause of action such a rule, that
wbich was for the price of the mare, arose without the jurisdictioni as it is whom^f cau^
was tried, cannot
(a) See tbU case, ante, 260 ; and also (6) 6 Tenn Rep. 175, t^^^n^
Morgan v. Ruddock, 1 Har. & Wol. 505. ^0B l^of |]|^ ^^
310
TERM REPORTS in the KING'S BENCH.
Bail Court,
Wills
r.
LiNGAIDCE.
most probable that the money was paid to the defendant at DixmCs repo*
sitory, which was in the city of London, If the money was not in fact paid
there, but within the jurisdiction of the Middlesex Court, that fact ought to
have been shewn by the defendant to entitle him to the rule. Another ob-
jection is, that sect. 19 of the act, depriving the plaintiff of costs, clearly
means in such actions only as might be prosecuted in the Middlesex Court,
and by sect. 1, that is confined to sums not exceeding 40^. In this case the
plaintiff's claim was for SL Qs. 4(2., to the whole of which it is clear he is
entitled by the verdict, though from the absence of some formal evidence,
which might probably have been supplied, the Court thought afterwards he
was not entitled to recover the whole of that sum. In the case of Jenkinson
v. Morton (a) it was held, that where a debt was reduced below 4:0s. by a
set-off, it was not a case within this act. — [Litiledale^ J. — It seems to me
there may be another point also. In sect. 19 there is an exception of cases
where the judge shall certify that the freehold, or title to land, or an act of
bankruptcy principally came in question at the trial. Now, it may be a
question whether on this trial before the under-sheriff, under the late act, he
could give that certificate. It has been decided that the sheriff cannot cer-
tify to deprive a plaintiff of his costs under stat. 43 Eliz, c. 6, s. 2 (6).
The language of that act, however, differs from the present, which may
make a distinction.] — ^That certainly is another argument against this rule ;
the word " judge" in this act must, in the same way, mean a judge of the
superior Courts at Westminster.
Waddmgton, contrd. — In the legal sense of the words, this verdict, as it
now stands reduced by the Court imder 40^., is the finding of the jury.
The verdict was given subject to the point of law, and therefore is to be
considered as the verdict of the jury in the way it is now ultimately entered
af\er the decision of that point of law. On the next point, that the cause
of action did not arise within the jurisdiction of the Middlesex Court, no-
thing would have been easier than for the plaintiff to have sworn, in his
afHdavit in answer to this rule, that the money was paid to the defendant in
the city of London, On the next point, the decision of the Court in Jen^
kinson v. Morton is not disputed, but it is clear that this plaintiff might have
sued in the County Court for the only sum he has recovered, which is under
40;. ; and as to the other sum of 2L 2s, it is also clear that he had no legal
right to it, as it must be assumed he had no certificate which would entitle him
to recover it. Chadwick v. Bunning (c) shews that the verdict is conclusive.
On the other point suggested by the Court, it is submitted that the term
"judge," in sect. 19, means the person presiding at the trial, and extends
to a sheriff presiding under the late act.
Cur» adv, vuU,
LiTTLEDALE, J. aflcrwards {November 25th) gave judgment. — This was a
rule calling on the plaintiff to shew cause why the defendant should not be
(a) 1 Mees. & Wels. 300; 5 Dowl. P. C.
74 ; and see Doume$ v. Bay, 1 Har. & Wol.
649.
(6) Wardroper v. Richardtan, I Adol. &
£1. 75; 3 Nev. & Man. 839; see also
Claridge t. Smith, 1 Har. & Wol. 667 ; 4
Dowl. P. C. 583.
(c) 5 Bam. & Cress. 532.
MICHAELMAS TERM, 1836. 311
at liberty to enter a suggestioni under the 23 G. 2, c. 33, s. 19, to entitle Bail Ccurt.
him to double costs, on the ground that the damages recovered were under s^v^/
do J. The action was brought for 3/. Qs. 4(/., of which 21, 2s. was for a sur- Wills
geon and apothecary's bill, and the rest for a sum of money which had been -^ ^*
paid into the defendant's hands as the balance arising from the sale of a *
mare of the plaintiff, which had been sold at Dixon's repository ; 5s, dcL was
paid into Court. The cause was tried before the under-sheriff, and the jury
gave a verdict for the plaintiff for 3/. 0*. 7d, A motion was afterwards made
in the Court of King's Bench, and a rule made absolute to reduce the da-
mages to 185. Id,, on the ground that the plaintiff had not proved that he
was duly licenced to practise as an apothecary. The plaintiff, in shewing
cause agamst the present rule, contended, 1st. That the act of 23 G. 2,
c. 33, only applied to cases where the jury gave damages under 40#.,
whereas here they had given more, and they were reduced by the Court.
It does not appear very clear from the notes of the under-sheriff, whether
liberty was given to the Court of King's Bench to reduce the damages, but
I must intend, that the parties had upon the trial consented that this should
be done, as otherwise this Court would have sent the case to a new trial ;
and if the parties consented that the Court should have power to reduce
the damages, it then became the same thing as if the jury had given the
smaller verdict, which in point of law they ought to have done. It was also
said, that the real debt was above 31, as found by the jury, and if that be
reduced on a point of law, it is not within the act ; but 1 think that makes
no difference, if it could not be recovered in point of law it is the same as
if it had no existence in fact. It was also contended, that the money re*
ceived by the defendant on the sale of the mare, was in fact received by the
defendant at Dixon's repository, which is in the city of London, and not in
the county of Middlesex, and that taking the whole act together, and more
particularly adverting to the 1st, 4th, and 19th sections, the Court, under
that act, had no jurisdiction, except in cases where the County Court had
jurisdiction before the act, and which they had not in cases where the cause
of action arose out of the jurisdiction. And I am of opinion, that if in
fact the defendant had received the money in the city of London, and there-
fore out of the jurisdiction of the County Court of Middlesex, and that fact
had now appeared before me, I should have been of opinion, notwith-
standing the general words in the 19 th section, ** if the defendant shall re-
side in the county of Middlesex, and be liable to be summoned to the County
Court," that, taking the whole act together, it must mean, liable to be sum-
moned for a cause of action arising within the jurisdiction. But it does not
appear from the notes of the under-sheriff that the cause of action did arise
in the city of London ; and though Dixon's repository be in the city, and the
defendant lives in High Holborn, in the county of Middlesex, one of the people
belonging to the repository may as well have taken the money up to the
defendant as the defendant have sent for it. If the plaintiff had made an
affidavit to shew how it wasi it might have been attended to, because on the
trial of this cause it was not likely to be made a question where the money
was received. In the absence, therefore, of proof to the contrary, I must
intend that the defendant, who without doubt resides in the county of Mid*
dlesex, was also liable to be summoned in that county, as it would be primd
312 TERM REPORTS in the KING'S BENCH.
Bail Court, ff^ presumed that he received the money at bis own domicile, and I am
v^v^ therefore of opinion that the rule must be made absolute.
Wills During the argument I suggested a doubt^ whether on a writ of trial
Langbxdos. l>^^of<^ ^^ sheriff there could be a suggestion under this act, but on further
considering it I am not prepared to say that my doubt was well founded.
Rule absolute.
Williams v. Gwynne.
1. An agreement ^^N the 9th ot July uoticc of trial before the sheriff of Carmarthen was given
!^'^J;!Jr.*! ^ "" t^is cause for the 28th, at two o'clock in the afternoon. The defendant's
ulntretion may '
operate aa a suy attorney Stated, that the defendant, on the 15th, agreed with him to refer the
aitho^gTit^irnot ™atter to arbitration, and signed an agreement accordingly. The plaintiff
part of the agree- stated, that at the time he was drunk, and did not know what he was doing,
sbcmid so operate. On the 27th the plaintiff met his attorney for the first time, and told him he had
8. The pWnUff entered into some agreement, but that he had received no copy of it, and did
be aiwaid proceed not know the nature of it ; and that he was induced to sign it at the solicitation
to trial noiwith- ^f ^|,g defendant and his friends at a tavern. The plaintiff's attorney, the
standing an agree- * i • i
ment to refer the Same evening, wrotc to the defendant to say that he should proceed to trial
cordTngW pn^ the next day, without any regard to any agreement he might have made with
ceeded to trial, the plaintiff. The defendant received the letter the same evening, and for-
▼erdict:~HiM Warded it early next morning to his attorney, who received it about nine
tiiat tiie defend, o'clock. The defendant's attorney lived twenty-five miles off the place where
to move to set ** ^^ ^I'ial was to take place. The plaintiff's attorney did proceed to trial
aside the trial the Same day before the sheriff, and obtained a verdict. The defendant's
until ho had no- ^ -.,"' 1/.1 ... v^.j.
tice of the plaintiff attorney did not appear to defend, not having time, as he stated, to prepare
hairing taken a foj jj,e trial. On the 11th o£ August the plaintiff's attorney gave notice of
SQDseqaent step ® * • t *• •»
inUiecsose. taxing the costs for the 12th. He taxed his costs accordingly, signed final
judgment, and issued SL^eri facias. On the 15th a summons was obtained
by the defendant to appear before a judge at chambers, for the purpose of
setting aside the proceedings. The judge ordered the proceedings to be
stayed until the term, in order to give time for an application to be made
to the Court. A rule having been obtained (on the 8th o£ Notfember), to
shew cause why the trial before the sheriff, and all the subsequent proceed-
ings, should not be set aside for irregularity,
R, V. Richards shewed cause. — The plaintiff is entitled to have this rule
discharged, as by a rule of Court made in the time of Queen Annct
mentioned in TiddCs Practice (a), no reference of any cause is to be a
stay of proceedings, unless it is expressed in the rule of reference to be
agreed that all proceedings shall be stayed. In this case, it appears that
although the defendant's attorney swears to an agreement to refer the cause,
yet he does not pretend to say there was an agreement to stay the proceed-
ings. The rule ought also to be discharged, on the ground that an agree-
ment to refer does not oust this Court of its jurisdiction ; Thompson v. Char*
nock(b). Another objection to the application is, that it is too late, as the
defendant ought to have made application to a judge within four days after
(a) Pafi 822, 9th ed. cidng Holt, C. J. 2 Lord RayinoDd, 789. (h) 6 T«rm Bep. l39«
MICHAELMAS TERM, 1836.
the tria], on the 28th of July, whereas he did not obtain the summons until
the 15th o£ August.
CMltOHt coHtrd, — The plaintiff having agreed to refer the cause, it was a
breach of faith to proceed afterwards to trial ; and it is therefore immaterial
whether or not there was any express agreement to stay the proceed-
ings in the meantime. The application abo was made in time, as it was not
necessary to make it until the plaintiff took another step in the cause after
the one complained of. He took no such step until the 11th of August ^
when he gave notice of taxing the costs. The defendant's attorney was
then obliged to write down to Carmarthen^ and, having obtained an answer,
got the summons on the 15tli.
Cur> adv, vuU,
LiTTLEDALE, J., afterwards (Nod, 25th), after reciting the facts of the
case, continued. — The first objection to this rule is, that the agreement
to refer to arbitration does not operate as a stay of proceedings, unless
it is expressed that it should so operate ; and a rule of Court, in the reign
of Queen Anne, mentioned in 2 Lord Raymond, 789, is referred to, but I
cannot find that there is any such rule. The case of Thompson v. Chamock
was also cited in argument, where it was decided, that an agreement to refer
does not oust the Common Law Courts of their jurisdiction. There is no
doubt of that, but this was a case of breach of faith, and I therefore see no
reason why the agreement should not operate as a stay of proceedings.
Then it is said that the application was made too late ; but I think that the
defendant was not bound to attend to the notice of proceeding to trial,
notwithstanding the agreement, and that the first notice to him was the
notice of taxing the costs, and that therefore the application was in time.
The rule must be absolute, on the terms of no action being brought.
Rule absolute accordingly.
313
Bail Court,
Williams
V,
GWYNNE.
Cassel v. Lord Glekgall and another.
if^TEER applied to the Court to set aside a warrant of attorney and the
judgment and execution thereon given to secure an annuity, on the
ground that the memorial of the annuity was not properly inrolied ; and
asked at the same time to add to the rule, that it should be a stay of pro-
ceedings in an action against the sheriff for a false return of nulla bona to a
writ of execution issued on the judgment on the warrant of attorney.
LiTTLEDALE, J. — I canuot grant the latter part of the application, which is
quite a collateral matter. A separate application must be made in the action
against the sheriff for that purpose.
Rule nisi granted to set aside the warrant of attorney ; and afterwards, on
a separate application, another rule nisi was granted to stay the proceedings
against the sheriff.
It caunot be made
part of a rule for
•etting aside a
warraut of at-
torney to secure
an annaity, that
proceedings
against tlie sheriff
for a felse retnm
to an execution
on the judgment
on the warrant of
attorney should
be stayed.
314 TERM REPORTS in the KING'S BENCH.
Bail Court,
^"^^^^ The King v. Lunn.
On moving for a "DAINES Hioved for a rule nisi for a mandamus, commanding the steward
mmmdamut to Uie of the manor of Wakefield to enter on the rolls of the manor a deed of
*'a''**^^**^* bargain and sale of certain copyhold property within the manor, pursuant to
deed under the the Act for the Abolition of Fines and Recoveries, S & 4 IV, 4, c. 74, s. 53,
i'^h'At.^' *' Application had been made to him, and he had refused. It was submitted,
Strntie, Uiat it that it was unnecessary to annex a copy of the deed to the affidavit on which
toltuciTnjpy '^® '"^® ^^ moved, as the affidavit itself stated the substance of the deed.
of tlie deed to tlie
the rale is moved. LiTTLEDALE, J.— If the affidavit States the substance of the deed, I think
it is sufficient.
Rule nisi granted.
Lewis v. Hilton.
If a particular of H^HIS was an action to recover a surgeon and apothecaries' bill; a
voluntarily deli- set-off was pleaded, and the defendant gave a particular of his set-off.
vered is intituled It did not appear he had been called on to do so by any order of a judge.
cour^thede- At the trial before the under-sheriff for Cardiganshire, the particulars of set-
fendantisnoi ^ff ^g^g called for, and a paper was produced, attached to the record,
thereby precluded ,,, ..i-i-iVif - i n ^ » r^ t t
from giving evi- whicli was intituled lu the Exchequer instead of this Court. It was then
deuce on bu pica, objected, ou the part of the plaintiff, that the defendant could not go into evi-
dence on his plea of set-off, as these particulars were wrongly intituled.
The under-sheriff thought the objection good, and a verdict was found for
the plaintiff for 51, 5s, 8d,
Chilton having obtained a rule, calling on the plaintiff to shew cause why
this verdict should not be set aside, and a new trial had, on account of the
rejection of this evidence,
JR. V, Richards shewed cause. — The ruling of the under-sheriff was right,
as particulars intituled in the Court of Exchequer cannot be considered
particulars in this Court. — [Littledale, J. — Was the order of a judge for the
particulars produced?] — It does not appear that it was; but these particu-
lars having gone down as part of the record, they must be considered as
made under the order of a judge.
LiTTLEDALE, J. — I think, that unless there was the order of a judge for
the delivery of the particulars, the defendant was not precluded from going
into evidence on his plea of set-off, because they were wrongly intituled.
The rule was afterwards made absolute on terms*
Robinson v. Stoddart.
offSi^"^«ton"* T^HE defendant's attorney in this cause, on the last day for pleading, de-'
don an irregular livcrcd a sct of plcas not signed by counsel. The plaintiff's attorney
judgment he had
signed, bat aot ba^iog actoallj strock it out, (hi defeadtot thoold not apply to the Court to set it Mide.
MICHAELMAS TERM, 1836. 315
the same day signed judgment, treating the pleas as a nullity. Afterwards, Bail C<mrL
on the same day, the defendant's attorney delivered a set of pleas properly v^v^i^
signed, on which the plaintiff's attorney gave notice he should abandon the Robinson
judgment he had signed. The defendant's attorney said he would accept Stoddart.
the abandonment if the plaintiff would pay the costs. That was objected to,
as there were in fact no costs incurred by the defendant. The judgment,
therefore, was not struck out of the book, and remained still in force. A
rule having been obtained, calling on the plaintiff to shew cause why the
judgment should not be set aside for irregularity ;
Petersdorff shewed cause. — The judgment certainly was irregular, as the
regular pleas were delivered before the time for pleading expired ; but tlie
plaintiff's attorney having offered to abandon it, the defendant's attorney
should have accepted the offer, and should not have insisted on the payment
of costs when none could possibly have been incurred by him. After that
offer, the defendant ought not to come to the Court to set aside the judg-
ment. The cases of Har grave v. Holden{a\ and BeUoti v. Barella{b),
shew that the defendant is not entitled to costs incurred subsequently to the
offer.
Alfred S, Dowling, con/ri. ^As long as the judgment remains in the book
it is in force, and the defendant is entitled to ask the Court to strike it out
as irregular.
LiTiXEDALE, J. — ^The defendant need not have come to this Court, it was
only necessary for him to have asked the plaintiff to abandon his judgment;
he was clearly not entitled to be paid any costs.
Alfred S. Bowling then submitted that the rule should be discharged with-
out costs, on the plaintiff iwdertaking to strike out the judgment signed.
Rule discharged accordingly.
(a) 3 Dowl. P. C. 176» (6) 4 Dowl. P. C. 719.
Kelly v. Brown.
IN February, 1835, this action was brought on a life policy : the plaintiff a rale canuot be
lived in Ireland, and was ruled to give security for costs. He produced two f^,J5iie"fOT the '
persons who were insufficient, he then came over himself to this country, puintifftofind
and on making affidavit that he intended to reside here pemumently, the rule J^fn^^i^HJf*
to find security for costs was discharged. He shortly after returned again tjmc, and if not,
to Ireland. An order had been subsequently made by a judge at chambers to'signjodgmcnt
on the plaintiff's attorney to state where he resided, which had been after- •» in ewe of non.
wards enlarged. It appeared that the plaintiff had lately been ejected from
a farm he held in Ireland, that he was insolvent, and that it could not be dis-
covered where he resided. The defence to the action was on the ground of
fraud.
316
TERM REPORTS in the KING'S BENCH.
Bail Court,
Kelly
V.
Brown*
Sir J. Campbell, A. G., now applied for a rule to shew cause why the plain-
tiff should not give security for costs within fourteen days, and if he did not
do so, why the defendant should not be at liberty to sign judgment as in case
of nonsuit. He submitted, that, unless such a rule was granted, the defendant
would have no prospect of recovering either the costs he had already been
put to, or those he would be further put to in carrying on the cause.
LiTTLEDALE, J. — You Cannot possibly have a rule for judgment as in case
of nonsuit at present, as that is a remedy given by statute in certain cases
only. All you can have is a rule in the ordinary form, to find security for
costs, witli a stay of proceedings in the meantime.
Rule granted in the ordinary form.
1. IfaplaiDtiff
omiU to churge a
priBoner in execu-
tion within tlie
proper time, it b
more than a mere
Irregularis, and
Uierefore applica-
tion to discharge
him may be made
at any time after-
vards.
S. A Judgment
signed but not
completed by tak-
ing in the toll un-
til some time after-
vards, is to be
reclconed as a
judgment of the
time when it was
signed.
3. Tlie rule of
H. T. 4 ly. 4, 3,
prevents H judg-
ment signed in
vacation being
considered as a
Judgment of the
previous term,
so that tliac
term cannot
reclion as one of
Uie terms witliin
vbicli a plaintiff
must diarge a
prisoner in execu-
tion by tlie rule
M.T.9 fK.4,
J. 85.
CoLBRON V. Hall.
nPHIS was a rule to shew cause why the defendant should not be discharged
out of the custody of the Sheriff of Middlesex^ the plaintiff not having
charged him in execution in due time. The declaration was in debt, and was
delivered on the 27th of November, 1834, which was in Michaelmas vacation ;
judgment was signed for want of a plea on the 22d of December, 1834, which
was also in Michaelmas vacation ; the judgment was completed by taking in
the roll on the 5th of May, 1835, which was in Easter Term. The defendant
was charged in execution on the 7th of May, 1835, and on the 7th of October
last, a summons was taken out to discharge the defendant out of custody on
the ground now moved on. The case was heard before Parke, J. who ordered
the question to stand over for the decision of the Court.
Butt shewed cause. — The question here is, whether the charging the de*
fendant in execution in Easter Term, 1835, was a sufRcient charging within
the meaning of the rule, H. T. 2 W. 4, I. 85 (a), the judgment having been
signed in the Michaelmas vacation preceding. That rule directs that the
plaintiff shall proceed to trial or final judgment within three terms inclusive
afler declaration, and shall cause the defendant to be charged in execu-
tion within two terms inclusive after such trial or judgment, of which the
term in or after which the trial was had shall be reckoned one. It will be
contended on the other side, that the judgment signed in Michaelmas vacation
refers back to the term, and that consequently the defendant was not charged
in execution within two terms inclusive afler such judgment, as by the latter
part of the rule, Michaelmas Term is to be reckoned one, and the defendant
was not charged in execution until Easter T'erm. There are several objec-
tions to this rule. In the first place, the application for the rule is made too
late. The rule that a prisoner, once supersedable, is always so, applies only
to cases where the proceedings are void from the beginning. This was a case
of mere irregularity, and the defendant should have applied earlier. In the
case of Smith v. Sandys (b), the proceedings from the commencement were
wholly void, and the Court there takes the distinction between the case of
(a) 1 Dowl. P. C. 194. (6) 3 Adol. k El. 693 ) 1 Har. & Woll. 377 ; 5 Nev, & Man, G9«
MICHAELMAS TERM, 18S6. 317
mere irregularity and that of the proceedings being void. The second an- Bail Court.
swer to this application is, that as by the first part of the rule of H. T. 2 W, 4, ^^^^^^^
the plaintiff is bound to proceed to final judgment within three terms inclu- ^^
sive aAer declaration^ and as this judgment was not completed until Easter Hall.
Term, which is within the three terms, and not being completed until then,
as it is to be reckoned from that time, therefore, the charge in execution be-
ing the same term, is clearly within the latter part of the rule. The cases of
Blackburn v. Kytner(a) and Butler v. Bulkeley (6), shew that this judgment is
not to be considered as final until Easter Term. The third answer is, that
even assuming this to be a complete judgment on the 22d of December ^ 1834,
the rule of H. T. 2 W, 4, is, that the defendant is to be charged in execution
within two terms inclusive afler such trial or judgment, of which the term in
or after which the trial was had shall be reckoned one. In the present case
there was no trials judgment having been by default, and therefore Michael--
mas Term, by the latter part of that rule, is not to be reckoned one of the
two terms within which the defendant should have been charged. In the
case of Borer v. Baker (c), the rule of H, T. 2 W, 4, was much considered ;
but in that case there had been a trial, and the case therefore was within the
express provision of the rule. The case of Melton v. Hewitt (d), more nearly
approaches to the present, and in that case it rather appears to have been the
opinion of Bat/ley^ J. that Trxnittf vacation, in which the judgment was signed
on cognovit^ did not reckon as one of the two terms. The cases of Heaton v.
Whittaker(e) and Smith v. Jefferys{f), were decided under the old rule of
Court, which differs from that of H* T. % W. 4, having the words '< final
judgment" as well as '* trial " in the concluding part of the rule. Then it is
to be considered whether the judgment relates back. Now by the rule of
H. T. 4 W. 4(g), it is ordered that judgments are not to have relation to any
other day than that on which they are signed. In the case of Lamhirth v.
Barrington{h\ the Court refused to allow judgment to be entered up nunc
pro tunc, contrary to the express directions of the legislature, and that deci-
sion must guide the Court in the present case, as the rule of H. T. 4 fV. 4, 3,
was made under the particular provisions of the stat, 3 & 4 /F. 4, c. 42, and
has therefore the force of an act of parliament.
KnowleSf contrd, was stopped by the Court as to the two first objections.
— As to the third objection, that this case is not within the latter clause of
the rule of H. T. 2 IF, 4, this being a judgment by default, and not after
trial, it was unnecessary to insert the words " final judgment " afler " trial "
in that rule, as at that time a judgment signed in vacation had relation back
to the previous term. Had this case, therefore, been previous to the rule of
H. T. 4 ^. 4, doing away with the relation back of judgments, the defendant
would have been supersedable by provisions of the rule of H, T. 2 W, 4f,
Now, although by the rule of H, T. 4 W. 4, judgments are not to relate back,
yet, for the purpose of this rule, this judgment may be considered as a judg-
ment of Michaelmas Term, 1834 ; for the meaning of the rule H. T. 4 fT. 4, is
not that a judgment signed in vacation is not to be regarded as a judgment of
n
5 TauDt. 672, 1 Marsh. 278. (e) 4 Eait, 348.
, , 8 Moore, 104. (/) 6 Term ReD. 776.
(c) 2 Dowl. P. C. 608. (g) 2 Dowl. P. C. 313.
(d) 2 Dowl. P. C. 71, 1 Cromp. & Mees. (h) 1 Hodm, 206, 2 Biog. N.C. 149.
679, 3 T^r. 603.
318 TERM REPORTS m the KING'S BENCH.
Bail Court, the previous term, but that it is not to have the efiect of a judgment of the
.v^vW previous term as to purchasers.
CoLBRON Cur. adv. tmli.
V,
Hall.
LiTTLEDALE, J. afterwards (Naoember ^5th) gave judgment. — This was an
application to discharge the defendant out of custody for want of being charged
in execution in due time. Declaration, 27th November^ 1834; final judgment
in debt signed in Michaelmas vacation, 22d December^ 1834 ; judgment com-
pleted, 5th May, 1835, which was in Easter Term. Defendant charged in
execution in the same Easter Term, on the 7th of May, 1835. It was ob«
jected, first, that the defendant came too late ; that this was a mere irregu-
larity on which it behoves a party to apply promptly^ and though greater
indulgence may be shewn to a prisoner than other persons, yet this is un-
doubtedly too long a time. As to that, I am of opinion that it is not an ir-
regularity. It is a violation of a rule of Court not to charge a prisoner in
execution in the prescribed time ; and it is a well* known established rule, that
a prisoner once supersedable for want of being charged in execution on the
judgment, always continues so. TideTs Practice^ 9th edition, p. 367, fully
explained by Mr. Justice Bayley in Melton v. Hewitt. The second objection
was, that the judgment was not completed till Easter Term, 1885, and if so,
he was charged in execution in due time ; but 1 am of opinion that the judg-
ment was completed in Michaelmas vacation, 1834. Final judgment was then
signed, and the plaintiff might then have waived his costs, and sued out exe-
cution immediately. The next objection was, that upon the construction of the
two rules of ^. T. 2 W. 4, and H» T. 4 W. 4, the plaintiff was in time in charging
him in execution in Easter Term, 1835. It may be proper to advert to the old
rule of H. T. 26 G. 3. (The learned judge recited it.) By the rule of H. T.
2 W. 4, 1. 85, it is directed. (He recited it.) By rule of H. T. 4 W. 4, 3,
'' all judgments, whether interlocutory or final, shall be entered of record of
the day of the month and year, whether in term or vacation when signed,
and shall not have relation to any other day." This is a parliamentary rule,
and has the force of an act of parliament, and shuts out all relation to the
preceding term, and therefore a judgment in Michaelmas vacation cannot be
taken as a judgment of Michaelmas Term, and this judgment having been
signed in December, 1834, is affected byjt, and cannot be taken to be a judg-
ment as of Michaelmas Term ; and then, according to the rule of H. T. 2 JV, 4,
the plaintiff has two terms afler that to charge the defendant in execution.
It is a very hard case, and the consequences probably were not contemplated
when the rule was made, and that may be a cause for the Court to make a
new rule. This rule, however, may be enlarged, so that the opinion of the
full Court may be obtained on the point.
Rule enlarged.
In the following Trinity Term the case came on before the full Court,
when Knowles did not appear to support his rule, but Littledale, J. mentioned
the facts of the case to the rest of the Courts who agreed with him in his
judgment.
Rule discharged.
MICHAELMAS TERM, 18S6. 319
Bail Court.
The King v. The Sheriflf of Shropshire, in the Case of ^^^"^^
Chappel v. Bowdler.
n^HIS was a rule to shew cause why an attachment against the Sheriff of ir a plaintiff has
Shropshire, for not bringing in the body, should not be set aside on pay- g*^^ * {[jj* *'\^^^^
ment of costs, and the question was, whether the attachment should stand as term by bail not
a security. The writ in the cause was issued on the 15th ofJultf; on the l^'J^due'ur!
20th^ the defendant was arrested, and the sheriff took a bail-bond, which was ^ut migiit have
taken for too large a sum ; on the 2Sd, the plaintiff had notice of the arrest, S[^,e*iMt sitting,
and the same day the sheriff was ordered to return the writ ; on the 29th, »' '• «»' ""^h a
the plaintiff filed a declaration de bene esse, and on the dOth gave notice that as wui euuue him
it was so filed ; on the same day the sheriff returned that he had arrested the ^ '**^" "!* •"«^'»-
defendant, and that he was out on bail ; the same day also the sheriff was sheriff sund as
ordered to bring in the body. On the 1st of August, the sheriff offered an "i.J^SfJJi""^ '
assignment of the bail-bond^ which was refused, as the sum for which it was n, t. s w. 4.
taken was too large. On Monday, the 7th of August, the defendant was ren-
dered, and on the 11th the plaintiff had notice of the render. The venue was
in Middlesex,
Erie shewed cause. — The attachment in this case is strictly regular^ and
the question, whether it shall stand as a security, depends on whether the
plaintiff has lost a trial or not. The declaration having been filed de bene esse,
on the £9th of July, after which the defendant had eight days to plead, issue
might have been joined by the 10th of August, if bail had been put in in proper
time. This would have been in time to give notice of trial for the first sittings
in this term. But as the plaintiff had not notice of the render until the 11 th
of August, and as by the statute % hS W. 4, c. 39, s. 11, no plea can be de-
livered between the 10th of August and the 24th of October, it was impossible
to give the fourteen days notice of trial for the first sittings in this term,
which was necessary, as the defendant lived more than 40 miles from London,
The plaintiff therefore has clearly lost a trial.
Busby, con/ri.— The rule of £f. T. 2 H^. 4, V. {a), is, that the attach-
ment shall stand as a security if the plaintiff has been prevented entering his
cause for trial in the term next afler that in which the writ is returnable.
Here, notwithstanding the render is not to be reckoned as made until the 11th
of August f yet on the 25th of October, the plaintiff might have ruled the de-
fendant to plead, and might have proceeded to trial at the last sittings in the
term. That has not been done, and the bail, on behalf of whom this appli-
cation is made, are entitled to the ordinary indulgence of the Court to have
the attachment set aside on payment of costs, without the attachment standing
as a security. The question turns entirely on the rule of H. T. 2 W. 4, V.
as by the old practice the plaintiff could not in this case have proceeded by
attachment against the sheriff; The King v. The Sheriff of Middlesex {b).
LiTTLEDALE, J. — According to the jold practice the attachment could not
have stood as a security in this case, but now the rule is different. By the
(a) 1 Dowh P. C. 199. (6) 2 Maul. & Selw, 562.
The Kino
V,
320 TERM REPORTS m the KING'S BENCH.
Bail Court, fifth rule of H. T. 2 Pf^, 4, the attachment shall stand as a security, " if the
plaintiff shall have declared de bene esse, and shall have heen prevented, for
want of special hail being perfected in due time, from entering his cause for
The Sheriff of trial in a town cause, in the term next after that in which the writ is return-
Shiiopsiiirb, able." If, therefore, the rule says that the attachment shall stand as a secu-
Chappel "^y> ^^^^^ plaintiff has lost a trial in the term, it means of course that it shall
V. not stand as a security, unless the plaintiff has lost a trial through the whole
BowoLER. ^£ jjjg term. In this case the declaration de bene esse was filed on the 29th of
July, and notice was given of its being filed on the SOth* The render was on
the 7th of August, which was equivalent to bail being put in, but as notice of
it was not given until the 11th, it will only be reckoned from that day. The
plaintiff, however, might on the 25th of October have ruled the defendant to
plead, and there would then still have been time to have given notice of trial
for the last sittings in this term. The rule of H. T. 2 JV. 4, makes no dif-
ference between the first and the last sittings in the term, and by the old
practice there was no such difference. It seems therefore to me, that, ac-
cording to the terms of the rule, the plaintiff has not been prevented from
going to trial tit the term, and this rule must be made absolute, without the
attachment standing as a security.
Rule absolute.
Brady v. Veeres.
Where the da. HPHE plaintiff sued the defendant in the Court of Requests at Bristol, and
magrs laid in the j|^g defendant removed the cause into the Tolsey Court there. In the
declaration are *^
exactly Qoi. it i* declaration delivered in the Tolsey Court, the damages were laid at 20/.
enteM^tTthe're- '^^^ defendant then removed the cause into this Court by habeas corpus, A
cognisances re- rulc to shcw cause why a writ of procedendo should not issue to the Tolsey
c.To^sl^Mnd 7*' Court at Bristol was then obtained, on the ground that the defendant had
&8 0.4,c.7i, not entered into the recognizances required by the statute 19 Geo, 3, c. 70,
s. 6, on removing ^ i*»oo/^ i 'ri /»
the cause out of an 8« 6, aUCl 7 Of O UCO, 4, C. 71, S. O.
inferior jurisdic-
Uie defendant Busby, shewcd causc. — The case of Atterborough v. Hardy (a) is a de-
knows that a less (.jjed authority to shew, that where the damages laid in the declara-
sum IS sought to , ^ , . . ^ .
be recovered. tiou are 20/. or upwards. It IS not necessary to enter mto a recognizance
on removing the cause, and that it is no answer to say that the sum really
sought to be recovered is under 20/. That case was decided on the statute
1 9 Geo. 3, c. 70, s. 6, which made it necessary, when the cause of actionVas
under 10/., to enter into recognizances on removing the cause. That sum
has since been altered to 20/. by 7 & 8 Geo, 4, c. 71, s. 6. In the present
case the damages laid in the declaration were 20/. exactly, and this rule must
therefore be discharged.
T, Denman Whatley, contrd, — It appears from the affidavits, that] the de-
fendant must have known that the real sum sought to be recovered was
much under 20/. Supposing a smaller sum had been indorsed on the writ,
the defendant would have been entitled, on payment of that sum and the
costs, to put an end to the action ; could it be afterwards said, that not
(a) 2 Baro. & Cren. 802.
MICHAELMAS TERM, 1836. 321
having done so, he was not bound to enter into a recognizance on removing Bail Court,
the cause, because the declaration laid the damages at 20/. or upwards, when wv^
it appeared so clearly that tliat cause of action did not amount to 201. ? Bhady
V,
Vl£RE8.
LiTTLEDALB, J. — It appears to me, that after the decision in Atterhorough
V. Hardy, the Court can look at the declaration only, and that it does not
matter what the parties know is really sought to be recovered. A plaintiff is
not bound by the indorsement on process if the defendant does not choose
to pay the sum indorsed, but may recover to a greater amount. The only
sum the Court can take judicial notice of, is the sum claimed by the decla-
ration. This rule must therefore be discharged, with costs.
Rule discharged, with costs.
The King v. Hassel and others.
npHIS was a rule obtained this term by Heat on, on behalf of Sinclair, one of ad indictment
the defendants in an indictment, asainst which Steer shewed cause. ■8»»"»' »*^<'"i
• 1 . 1 person* wa» re-
The facts and arguments are fully stated m the judgment. moved into this
Cur. adv. vult. ^."Xu.
tlie consent of one
LiTTLEDALE, J. {NoTcmber 25th) gave judgment. — This was a rule calling who^entardr***
on the prosecutor to shew cause why the defendant Sinclair should not w«8 alone tried
be discharged out of custody, as to the writ of attachment issued against guilty, tiie oUier
him in this prosecution, for his contempt in not paying the sum of 90/. defendants iiaving
irx«i 111 111 f^ " o come to an ar-
lOs, 2d,t and why the prosecutor should not pay the costs of the appli- nngement with
cation. It appeared that an indictment had been found at the Middlesex J^e prosecutor ;
. ne was aftcrarards
Quarter Sessions against the defendant and a great many others for a riot uken on an at.
and assault. This indictment was removed by certiorari into the Court of ^<^||"»«»J/o"^ '*»«
■^ coats or tiie prose-
King^s Bench, upon an affidavit made by Rogers, who is described in the cuUon, but Uie
affidavit as the clerk of the attorney of Hassel and the other defendants. ^"Jlunc"!!.!''*
On this occasion there would of course be given the usual recognizance discharged bin.
under the statute of 5 & 6 W. ^ M, c, 11, (which was the act then acted
upon as to the removal of indictments,) by two bail in 2QL each, and which,
amongst other things, is for the payment of costs. The writ of certiorari^
on the face of it, removes the indictment as to all the defendants^ and the
recognizance is applicable to all also. It is competent for one of several
persons indicted to issue a writ of certiorari without the concurrence of the
others, and the indictment is then removed as to all the defendants (a) ; but
then it is competent for the others, if they wish the indictment to remain in
the Court where it was found, to apply that the person who removes it shall
give security for costs, so as to indemnify those who object to its being
removed, or otherwise for a procedendo to issue. The indictment was tried
in the Court of Kings Bench, at the sittings after Easter term, 1834, and the
prosecutor proposed, that if the defendants would plead guilty, and give up
a cross-indictment which had been preferred against the prosecutor, and
enter into their own recognisances, he would forego the costs against such
(a) But sec the case of TAe Kwg v. Connop and others, 2 Har. 6c Wo]. 81.
VOL. II. Y
322
Bail Court.
The Kino
Hassel
and others.
TERM REPORTS in the KING'S BENCH.
of the defendants as would come into that arrangement. This was agreed to
by several of the defendants, but Sinclair vfonld not consent to the arrange-
ment, and he was found guilty and sentenced to a month's imprisonment, and
the indictment in which he was the prosecutor was tried, and the defendants
in that indictment were acquitted. The defendant Sinclair was afterwards
taken upon an attachment for non-payment of the costs in respect of the
indictment in question, and he now applies to be discharged from that
attachment, on the ground that the indictment was removed at the costs and
charges of Hassel^ and that Sinclair was a total stranger to the proceedings,
and that no communication was made to him of HasseFs intention to obtain
the certiorari, and that the certiorari was applied for and obtained without
the knowledge, privity, or consent of Sinclair. There is no distinct affidavit
that he did not concur in applying for it, though he appeared and took his
trial, and it is not stated that he ever objected to the removal, yet he was
compelled to appear and plead and go to trial, and could not help himself,
and could not have had a procedendo, if at all, unless at a very great expense.
It appears to me on the whole of the case, that this indictment must be taken
to be removed without the knowledge of Sinclair ; and though the prose-
cutor did not know that to be the case, and therefore he was entitled to
issue the attachment for the costs, yet when the fact is made to appear that
Sinclair was ignorant of the certiorari being applied for, I think that no
further proceedings ought to be taken upon the attachment, and that the
defendant Sinclair is entitled to be discharged out of custody. But there is
no ground for making the prosecutor pay the costs of the application.
There is no hardship in the prosecutor losing this remedy for his costs ; he
has discharged the other defendants, and thereby thrown the whole costs on
Sinclair ; and though each is liable for the costs, yet if the others had been
found guilty, they would probably have come to some arrangement to pay
the costs amongst them. No action is to be brought in respect of Sinclair
having been imprisoned on the attachment.
Rule absolute accordingly.
ScAiTii V. Brown.
1. If •defend. T^HE defendant was arrested by process out of the Palace Court ; on the
•nt has been ar- jQth of September, the cause was removed into this Court by habeas
retUd by procew i i , /» r^ t > . i ...
out of the Paiae* corpiis ; and on the I st ot October, a procedendo was granted as no bail above
^'^'^^ has* been ^^* P"' *"' '^^^ procedendo was then set aside, on payment of costs, and
removed into the ball above Were put in. An order having been obtained on the 15th for
b^rbcifrMnlot ^^^^^^ *^ail which expired on the 24th, the defendant was rendered instead,
render the de- on the 20th by his bail to the county prison of Middlesex, On the 22nd
c^umy'g'^of under "^^^^c of the render was given. On the 24th the plaintiff declared de bene esse,
ti.csututeii commencing in the old form, by stating the defendant to be in the custody
c.Vo.'T. 2?. * ' o^ ^^*® marshal of the Marshalsea. On the 25th the writ o£ procedendo is-
£. Such an irrc- sucd. A rulc having been obtained by the bail of the Palace Court to shew
notitaivedby the causc why this procedendo should not be set aside, with costs,
plaintiff declitnng
dt btiu eis€ against tlte defendant as in tlie custody of the msrshal.
S. The Court, however, set aside a rule for a /froeedend-*, ou the appUcation of the btiil, ou payment of
costs.
MICHAELMAS TERM, 1836.
Erie shewed cause. — The material question is, whether this render to the
sheriff is a good render, within the statute 11 G. 4, and 1 W, 4, c. 70, s. 21.
By the old practice, it was necessary that a render should be made to the
prison of the Court out of which the process issued, but that act enabled
the bail to render to the sheriff. That act, however, is expressly confined
to persons arrested on mesne process issuing out of the superior Courts.
If, then, this render was void, the procedendo was regular. But it is next
said, that by declaring de bene esse against the defendant on the 24th, before
the time for justification had expired, as in the custody of the marshal, the
irregularity of the render, if any, was waived. That form, however, is not
to be considered as a waiver : the Uniformity of Process Act, 2 & S W. 4^
c. 39, under the provisions of which the rule of M. T. 3 W, 4, (a) as to the
form of declarations, was made, does not extend (by section 19), to causes
removed into this Court by certiorari ; and therefore it has been thought
best not to adopt the form given by that rule. There will be no hardship
on the bail below by allowing the procedendo to stand good, as the practice
in the Palace Court is to let them in to try the merits.
Humphrey, contrd. — The act of 11 G.4 and 1 IV. 4, c. 70, s. 21, was in-
tended to apply to all cases of arrest ; and the Palace Court may, moreover,
be considered as a superior Court. In the case of Stride v. Hill(b), the
Court held, that Dwer Castle was to be considered as a county gaol, upon an
arrest within the Cinque Ports, to which the defendant might be rendered
under the act. Even supposing the render is bad. It has been waived, not
by the declaration being in this particular form, but by the plaintiff declaring
at all, as he thereby has recognised the cause still to be in this Court ; where
it would not be if the render was irregular, for the cause would be remitted
to the Palace Court, At any rate, as this has been a mere mistake in
making the render, this Court will relieve the bail below, on payment of
costs ; as they will be fixed in the Palace Court if the defendant has no
merits.
Coleridge, J. — The bail must be relieved, as the render was a mere mis-
take, though I cannot but say that the render was irregular. The Cinque
Ports are a peculiar jurisdiction, therefore quoad them Dover Castle may
well be considered as a county gaol. I do not think, however, that the
Palace Court can be considered as a superior Court. I think also that the
irregularity has not been waived. The rule therefore must be made abso-
lute, on payment of the costs attendant upon the issuing and setting aside
the writ of procedendo.
Rule absolute accordingly.
323
Bail Court.
SCAITH
V.
Brown.
(«) 1 Dowl. P. C. 475.
(6) 4 Dowl. P. C. 709 ; 1 Mees. & Wels. 37.
y2
324 TERM REPORTS in the KING'S BENCH.
Bail Court,
""^^"^ Clarke v. Om^en.
i.Acaote, in ^HIS was an action of atsumpsU, and the declaration consisted of three
several issuesl to counts. The defendant pleaded tion assumpsit, and also pleas of pay-
referred to arbitra- ment and set-off to each count, on which pleas seven issues were joined. Be-
abide the event. ^OTe trial, the causc and all matters in difference were referred to an arbitra-
The artiirator jq^ i\^q coBts o£ the suit and of the reference to abide the event. The
awarded on each
issue separately, arbitrator found the first issue for the plaintiff, and then found separately
e^h*^^ tLt ®" ^^^^ ®^ *^® other issues on the pleas of payment and of set-off, and
gave no direction partly foF the plaintiff and partly for the defendant on each of them. He
vCTdk?or"f Lut ^^^" awarded that the defendant should pay the balance due to the plaintiff
proiepn.—HM, of 59/. 17*. 9rf., " together with the costs of the suit and reference, so far as
tras sufficiently ^^^Y ^^^'^ have been taxed by the proper officer, on the 7th day of Norcan'
final, so that the ^er.** He also found that there was no other matter in difference. He gave
costs could be i«*/* .• i*. i* f> -■•
taxed. no directions for entering a verdict on the issues, or a nolle prosequi or a dis-
2. He also continuaucc. A rule having been obtained to set aside the award, or so
defendant should much of it as Ordered the payment of the costs of the suit, on the ground of
pay aceriiuu wm, gxccss of authority in the arbitrator, and of the award not being final,
the costs of the
eucc*M fw-'^M ^' ^' ^^^^^^ shewed cause. — The excess of authority complained of, is,
tiiey shall have that as the costs are by the reference to abide the event, by the award the
proper officer^on ^ arbitrator has directed the defendant to pay the whole, although on some of
the 7th Nov,:^*— the issues he has found partly for the defendant. The direction, however,
was not an award as to the costs, is merely a direction of the time when the defendant is to
®^J^*^f?*"^®" pay them ; and it leaves it open to the Master to tax them as he sees fit, ac-
oniyastothetime cording to the event of the cause. As to the award not being final, the
^^*°' arbitrator had no power to enter a verdict. Having found separately
on each issue, and awarded how much the defendant was to pay, and that
there was no other matter in difference, he has awarded all that he could ;
and by the separate finding on each issue, the Master is enabled to tax the
costs accordingly. The case of Hutchinson v. BlackweU{a) shews that the
arbitrator had no authority to order a verdict to be entered.
Addison, contrd, — The order on the defendant to pay the costs is not
merely as to the time when they are to be paid, but is a direction to pay
*' the costs of the suit," which must mean the whole costs of the suit ; and
the arbitrator has thereby exceeded his authority. The award, moreover, is
not final. It is true the arbitrator could not direct a verdict to be entered,
but he might have ordered a judgment by confession to be entered for the
plaintiff as to part, and a nolle prosequi as to the rest. By leaving the cause
as he has done, there is no legal event of it by which the Master can tax the
costs. In the case o( Norris v. Daniel {b) it was held, that an award that
the plaintiff had a good cause of action on five out of eight counts, and that
no further proceedings should be had in the action, was bad, as there was
no event to authorise the taxation of costs on three of the counts. — [Cole"
(a) 1 Dowl. P. C. 267 ; 8 Bing. 331 ; 1 (6) 10 Bing. 507 i 2 Dowl. P. C. 798 ; 4
M. & Scott, 513. M. & Scott, 383.
MICHAELMAS TERM, 1836.
ridge, J. — The case of Dibben v. The Marquis of Anglesea (a), is an autho-
rity against this rule.] — In re Leemmg and Fearnl^ (b) is, however, an equally
good authority in support of it.
Coleridge, J. — I think this rule must not be made absolute. On the
first point I have no doubt whatever. By the reference, the costs of the suit
and of the reference were to abide the event, and the words of the award
are, << I award that the defendant shall pay to the plaintiff the sum of
59/. 17«. 9(/., together with the costs of the suit and reference, so far as
they shall have been taxed by the proper officer, on the 7th day of Naoem-'
ber" I do not think that in that award the arbitrator takes on himself to
direct any thing as to what costs are to be taxed, but he only directs as to
the time when they are to be paid. I think, therefore, that that point is not
substantiated. On the other point I had at first some doubt, but as the ar-
bitrator has found distinctly on each issue, I think that to be the legal event,
and that it entitles the Master to tax the costs of the reference, and also the
costs of the suit accordingly. The arbitrator had no power to enter a ver-
dict. The rule therefore must be discharged, but I shall direct nothing
about the costs, and they will then be costs in the cause.
Rule discharged.
(a) 10 Bing. 569; 2 Cromp. & Mees.
722 ; 4 Tyr. 926.
(6) 5 Barn. & Adol. 403; 2 Nev. & Mao.
232.
325
Bail Court.
Clarkb
v.
Owen.
Blewitt V. Tregonnin.
JP^RLE, on the part of the executors of the defendant, moved for a rule
to shew cause why a person named Symondi should not come in, and
pay the costs demanded of them. The action was in trespass for taking
away sand from the sea shore ; and the defendant, Tregonnin, justified
as servant of Symonds, who, it was alleged, had a right as occupier to
take the sand. The executors of Tregonnin had been called on to pay the
costs of the cause to the plaintiff. In their affidavit, on which this motion
was grounded, they swore that the defendant never instructed any person to
defend the action, or took any part in the proceedings. It was also sworn,
that the deponents believed that Symonds had employed the attorney to de-
fend the action. It was submitted that the only case to which the present
was at all similar, was that of an action of ejectment in which a landlord
puts forward one of his tenants as a nominal defendant, when the Court
would compel the landlord to pay the lessor of the plaintiff's costs ; and
that the present case did not differ in principle (c).
•
Coleridge, J. — This is a proceeding between a nominal and real defend-
ant, not between a landlord and the lessor of the plaintiff in ejectment. It
would be too much extending the jurisdiction of this Court to grant this
rule on an affidavit of belief only, that Symonds had employed the attorney
in the cause.
Rule refused.
B.ol« to compel ft
tliird person to
pay defendant**
costs of an action,
on an affidavit
that it was "* U-
liever he had in
fact defended the
action, refused.
(c) See Lloyd v. Evans, 1 Will. Wol. U Dav. 60.
326
TERM REPORTS in the KING'S BENCH.
Bail Couri,
An application
to act aside an in-
terlocutory judg-
ment for irregu-
larity, not made
until after a rule
to compute was
obtalnedi Md too
late.
Grant v. Flower.
C\^ the Ist of August last the writ of summons issued in this cause; on
the 17th of Septetnber it was served ; on the 21st of October an appear-
ance was entered by the plaintiff; on the 25th he declared ; on the 29th the
defendant took out a summons to set aside the proceedings for irregularity,
which was heard before Lord Denman, C. J. on the 31st, and dismissed. On
the 2d of November the defendant's attorney attended at the office of the
plaintiff 's attorney, and examined the writ; on the 5 th interlocutory judg-
ment was signed for want of a plea ; and on the 8th a letter was sent to the
defendant's attorney, informing him judgment was so signed. On the 17th,
no step having been taken by the defendant, a rule to compute was obtained
and served, returnable on the 21st. On the 22d, a rule niii to set aside the
interlocutory judgment and subsequent proceedings for irregularity was ob-
tained.
Temple shewed cause, and objected that the rule being for irregularity,
should have been moved for earlier.
Barstow, contrd, contended, that the time before the rule to compute was
served did not reckon.
LiTTLEDALE, J. — I think that that time must be reckoned ; the application
therefore was made too late, and the rule must be discharged with costs (a).
Rule discharged with costs.
(a) See the rule, H. T. 2 W. 4, 1. 33, 1 Dowl. P. C. 187.
Ex parte Minchin.
An attorney, A LFRED S, BOWLING moved, on the 18th Nfyvember^ to re-admit an
not**uking out\is attomcy without giving the usual notices. The last certificate Minchin
certificate, was off ^Qok out expired on the 15th of November, 1835. He then did not take out
days, was allowed his usual Certificate for the next year, on account of pecuniary difficulties,
to ^ readmitted Thinking that he would be entitled to take out his certificate this year at any
usual noUcv. time between the 15th of November and the 16th of December, as in ordinary
cases (6), and that as that certificate would be dated on the 1 6th November,
he would not be off the roll of attornies, he applied on the 1 7th, and found
he was too late, and had been off the roll two days (c). As this arose from
a mistake, it was submitted that the Court would re-admit him without the
usual notice. It was admitted that he had practised while so off the roll.
LiTTLEDALE, J. — He may be admitted on payment of a fine of 20*., and
the arrears of duty.
Rule accordingly.
(^'0 54 G. 3, c. 141.
(f) 37 G. 3, c. 90, s. 31.
MICHAELMAS TERM, 1836. 327
Bail Court.
£x parte Billings.
"nLATT moved for the re-admission of an attorney. He had been off the ^ a penon who
#^^ . . 1 . • 1 1 • has been offUie
rolls thirty years, havmg been m the mterim partly engaged m some rou of auornies
office connected with His Majesty's Customs. He submitted that this case for thirty years
o •/ it • cannot DC re>au«
differed from that of Ex parte Frost (a), which was a case of total abstraction nitted.
from the profession.
LiTTLEDALE, J. — Thirty years is a long time, and I think amounts to a
total abstraction, and that the party cannot be re-admitted.
Rule refused.
(a) 1 Chil. Rep. 558, n.
Ex parte Thomson.
/f LFRED S, DO JVLING moved to re-admit an attorney. It appeared, that An attorney
since he had ceased to take out his certificate he had practised as an ^^f 7**"* °*^.***!
* rolls has practised
attorney in the Borough Court at Li/nn. It was not necessary that a person in a borough
should be an attorney of the superior Courts at Westminster, in order to enable ^jn^ Ji*^lJ^t
him to practise in that court. It was submitted, that under those circum- payment of fine or
stances he was entitled to be re-admitted without payment of any fine, or of jajj* *'^'**" **^
the arrears of duty.
LiTTLEDALE, J. — You may take the rule.
Rule granted accordingly.
Taylor v. Slingo.
npHIS was an action for beer supplied for the defendant, which was Amieforanew
tried before the under-sheriff of Buckinghamshire. At the trial evi- ^«» »»«*«««>»?*
^ Of surprise on tne
dence was given by the defendant to shew that the beer was supplied for plaintiff was
the defendant's father, who had the same christian name ; and a receipt was My1^ent*ofcosu*
also produced as a receipt given to the defendant by the plaintiff, for beer ^}^io a ceruin
supplied to the former. A verdict was found for the defendant. In Easter then'the"niio*was
term last the plaintiff obtained a rule nisi for a new trial, on the ground of ^}^ discharged
surprise ; the receipt produced, as he alleged, having been given by the plaintiff did not
plaintiff to defendant's father for beer and other thinss supplied for him. p*y the costs with-
*■ , /• . in the time, but
On shewing cause against that rule, the defendant and his father made affi- preferred an in.
davits in which they denied the plaintiff's statements on which he had ob- ?**^^«»»t 'f' p"-
-,-,, , ^~ jury committed by
tained the rule. After hearing the parties^ the Court ordered that upon the defendant in
payment of costs by the plaintiff within ten days then next ensuing, to be ^'Jbn'torte''^
taxed by the Master, that the verdict should be set aside and a new trial ^^^^ ^°' "^ °«^
had ; but in default of the costs being paid within the ten days, then, that Siepr^^fi^for
the rule should be discharged with costs to be taxed by the Master. The ^® enforcement
plaintiff did not pay the costs within the ten days, and he was then arrested rale roX not be
for and paid the costs of the cause. The costs on the discharge of the rule *^y®** uuiu after
* ° the trial of the
indictmeut.
328
TERM REPORTS in the KING'S BENCH.
Bail Court,
Taylor
V,
Slingo.
were not taxed or paid. At tlie October sessions, the plaintiff preferred two
bills of indictment against the defendant and his father for peijury com-
mitted by them in their affidavits in opposition to the rule of Easter term, on
both of which the grand jury returned a true bill. This term, the plaintiff
obtained a ride to shew cause why all further proceedings under the rule of
Easter Term should not be suspended until the indictments were detennined,
and the Court should further order.
Henderson shewed cause. — The only object of the plaintiff by this rule, is
to delay the taxation of the costs of the former rule. The case of Davis v.
Cottle (a) is an authority to shew that the Court will not again open the
matters on which the former rule was obtained. The only new fact that has
arisen since the former rule was before the Court, is the finding by the grand
jury of two indictments for perjury. The finding of those indictments is however
a mere ex parte proceeding, and is no ground for this Court to presume the truth
of the charge. The cases onVarwick v. Bruce {b)^ and Pott v. Parker (c), are
authorities for that position. In Thurtellv, Beaumont (d) the Court refused
to interpose and grant the defendant a new trial, on the ground of an indict-
ment having been found by the grand jury against the plaintiff and others
for a conspiracy to defraud the defendant in the action, although a new trial
was granted on the ground that new evidence had been discovered since the
trial. Seeley v. Mai/hew (e) and other cases might also be cited to the same
effect.
Bt/les, contrd, — In the case of Warwick v. Bruce, the application was made
after a writ of error had been brought, and the application was consequently
refused in so late a stage of the proceedings. In the case of Thurtell v. Beau^
mont, it was not an indictment for perjury that had been found, and that,
therefore, is not a case that applies to the present. In Deakifi v. Praed (f)^
the Court gave time to a defendant to plead until after the trial of an indict-
ment which had been found against the plaintiff for a felony. A case is now
depending also in the full Court, where a second rule nisi for a criminal in-
formation had been obtained against the Satirist newspaper, a former rule
having been discharged on an affidavit for which the deponent had since been
indicted for peijury, but which indictment has not yet been tried (g). In the
present case, the indictments were preferred at the sessions under the statute
o{ Elizabeth, and this plaintiff cannot give evidence in support of them^ as he
is an interested witness.
Cur. adv. vult.
LiTTLEDALE, J. afterwajrds {November 28tli,) gave judgment — This was a
rule to stay proceeding^ under a former rule, by which the plaintiff was liable
to pay certain costs, until after the trial of two indictments for perjury. Se-
veral cases were cited against this rule, and in support of it a case was also
cited against the Satirist newspaper, which was lately before the full Court ;
but I find that that case differed from the present, and is not, I think, in
3 Term Rep. 405.
4 M. & Seiw. 140.
2 Chit. 269.
(d) 1 Bing. 339 i 8 Moore, 612.
(0 4 Ding. 561.
(/) 4 Taunt. 825.
{g) See the case The King v. Eve, post*
MICHAELMAS TERM, 1836. 329
point. It seems to me that I cannot grant this riile^ consistently with the q^^ Cmrt.
practice of the Court. An action was brought, in which the defendant un- ^^v^w
expectedly succeeded. A new trial was then applied for, on the ground of Taylor
surprise^ and was granted, but the plaintiff did not comply with the terms of Slingo.
the rule under which that new trial was granted him. Two indictments for
perjury committed in opposing that rule were then preferred, and found by
the grand jury. That, however, is a mere ex parte proceeding, and I shall
not, on that account, stay the proceedings to recover the costs of the rule.
The plaintiff had the option to have a new trial, and it is his own fault that
those costs are imposed upon him; and being so imposed, I think he was not
justified in preferring the indictments for perjury, and then making this ap-
plication to stay the proceedings for the payment of costs. It was observed
that these were indictments on the statute of Elizabeth, and that the evidence
of the plaintiff was excluded ; but that, I think, makes no difference, it is
equally an ex parte proceeding to get rid of a rule of Court, and this appli-
cation cannot therefore be encouraged. The rule must be discharged with
costs.
Rule discharged with costs.
Ellis t;. Giles.
JM^IGHTMAN moved for an attachment against the defendant for non- where a de-
payment of money, pursuant to an award and the Master's aUocatur, !^^^^l^
The affidavit stated that the deponent had served the copy of the award, of au award, rule,
rule, and allocatur, by offering and tendering them to the defendant, but JJJ^chnirereten-
that he put his hands behind his back and refused to take them. The ori- dersdhim,the
ginal award, rule, and allocatur^ were at the same time shewn him and a rnirfoflnat-*
demand made, but he said he would not pay the money. tachmenu
LiTTLEDALE, J. — The Only question is, whether the deponent should not
have thrown the copies down on the ground, so as to allow the defendant to
have taken them up afler the deponent had lefl, if he pleased to do so ; but
I think enough was done.
Rule nisi granted.
Strike v. Blanchard.
jrWOGGINSf on shewing cause against a rule obtained by Archbold, took An affidavit bj
a preliminary objection, that the affidavit on which the rule was granted "ei^ffWng the
was incorrect in form. It was made by a person who described himself as reridenceofhis
clerk to the attorney for the plaintiff, and gave the residence of his master. ""Jl^n*'^ m^
It was submitted that the clerk should describe himself as of some place (a), cleat.
LiTTLEDALE, J. thought it was sufficient (6).
The rule was then discussed on the merits, and discharged.
(a) See the rule //. T. 2 W, 4, I. 5, 1 (h) See DottomUu v. Belchamher, 1 Har.
Dowl. F. C. 184. & Wol. 3W ; 4 Dowl. P. C. 26.
330 TERM REPORTS in the KINGS BENCH.
Bail Court,
Mackenzie v. Gayfokd and another.
Anintrrioca- TTUMFREY shewcd cause against a rule to set aside this judgment for
tory judgaient irregularity. The irregularity complained of was, that being an action
a proittiasory note of debt on simple contract on a promissory note, the plaintiff bad signed an
u not irregular, interlocutory instead of a final judgment. That, he submitted, the plaintiff
bad a right to do.
Maruel, contrd, submitted, that although in debt for not setting out tithes,
and for the value of foreign coin, the judgment was not final; yet that in
debt on a promissory note it invariably was.
LiTTLEDALE, J. — I do uot know why the plaintiff may not, if he pleases,
sign an interlocutory instead of a final judgment ; there are several sorts of
actions of debt in which it may be done.
Rule discharged.
Smith v. Rathbone.
ifadefeodant HPHIS was a rule to shew cause why the judgment signed by the plaintiff
''r'^^^hiT**^ for want of a plea should not be set aside for irregularity. On the 1st
iMd for want of of November the defendant had seven days given him to plead. On the 7th
nabare'*wh!M«- ^^ delivered some special pleas not signed by counsel, and on the 8th the
upon Uie plaintiff plaintiff signed judgment for want of a plea. The defendant did not afler-
Stoi tbfti^a wards deliver any other pleas.
for pleading ex<
nentbinegoiv. Thomas shewed cause, and contended, on the authority of Kay v. White-
head {a\ that the judgment was regularly signed on the 8th, and that having
delivered irregular pleas, the plaintiff was entitled immediately to sign judg-
ment. He also submitted that this rule could not be made absolute, the
defendant not having since delivered any good pleas.
Busby i contrd, contended that the cases of PeppereU v. BurreU(b), and
Macher v. Billing (c) shewed, that although the pleas were irregular, yet the
plaintiff could not sign judgment until the time for pleading had expired,
which extended to the whole of the 8th of November, and that the defendant
had the whole of that day to deliver a fresh set of pleas properly signed.
LiTTLEDALE, J. — Thosc cascs are clear on the point, and the rule must
therefore be absolute with costs. It is immaterial that the defendant has not
delivered any good pleas since.
Rule absolute, with costs.
(a) 2 H. Black. 35. (c) 1 Cromp. M. & Ros. 577 ; 3 Dowl.
(6) 1 Cromp. M. & Ros. 372 ; 2 Dowl. P. C. 246 ; 4 Tyr. 812. See also Dakint v.
P. C. 674. Wagner, 3 Dowl. P. C. 636.
MICHAELMAS TERM, 1836. 331
Bail Court.
Baron De Reutzen and Wife v. John. ^"^^"^
"W^ WILLIAMS shewed cause against a rule to enlarge a peremptory Apermptory
undertaking. It was given in one of thirty-one actions brought to bftviagbeen
recover tolls of a market, and the peremptory undertaking had been pre- •^*"i timts en-
viously enlarged four times in order to have the decision of the Court on a be •gain enlarged
point of law in one of the actions, which would most probably settle all the ^ ***• "^^
, . . ftiate oo pay*
others. The only question was, as to the terms on which the enlargement meot of coeta.
should be made.
/. Evanst contrd,
LiTTLEDALE, J. — Aflcr four previous enlargements, the undertaking must
be enlarged on the payment of the costs of this application by the plaintiff.
Rule accordingly (a),
(a) See Pereival v. Bird, 4 Dowl. P. C. Wol. 653; 4 Dowl. P. C. 564.
748 -f and Dtnnehayt v. RUhardson, 1 Har. &
Hawley V. Sherley.
fJTOGGINS shewed cause against a rule for judgment as in case of non- a cause iiaTing
suit, and contended, that the cause having been once carried down for *J^ ®?*^ **Y°
trial, when a verdict was obtained for the plaintiff, which had been set aside after wiitch a new
and a new trial granted, the defendant could not have this rule, which was for JllJ^J'^h^noiki
a default in not going to a second trial. of trial given, th«
defendant cannot
have judgment as
Petersdoiffy contrite contended, that notice of trial having been again given, incaseofnonsou.
the defendant was entitled to the rule.
LiTTLEDALE, J. — That makcs no difference; the cause has been once
carried down for trial, and the statute is therefore satisfied.
Rule discharged (6).
(6) See Gilbert y. Kirheland, 2 Dowl. P.C. and Doed, Giles v. Wynne, 1 Chit. 310.
153 ', Porulius v. Maddockt, 1 U. Black. 101 ;
Howell v. Jacobs.
TSSUE was joined in this cause in Trinitjf Term last, and notice of trial was i. The pUiutiff
given for the sittings in Middlesex after that term. The defendant after- ^*J"'of tSd the
wards ruled the plaintiff to enter the issue^ and because he did not do so, defendant cannot
signed judgment of non-pros. The plaintiff then obtained a summons to set Jl^^^f^^ot"^
entering the Issue,
fi. Tlic defendant having irregularly signed judgment of nomproa, by which the plaintiff was prevented
proceeding to trial according to hb notice, tiie defendant cannot have judgment as in case of nonsait for
the default.
332 TERM REPORTS in the KING'S BENCH.
Bail Co rt ^^'^^ ^^^ judgment for irregularity, and before that was determined the time
x^.^^ for trial passed by. The judgment was set aside, and this term a rule nisi
Howell for judgment as in case of nonsuit was obtained.
V.
Jacobs.
Archbold shewed cause, and contended, that as the plaintiff bad been pre-
vented trying the cause by the irregularity of the defendant in signing judg-
ment of non-pros^ he was not entitled to the rule.
Streetont conlrd.
LiTTLEDALE, J. — The plaintiff having given notice of trial, the defendant
could not sign judgment oi non-pros; and if by his default the notice of trial
was rendered of no efiect, he cannot now have judgment as in case of nonsuit.
Rule discharged.
Jam£8 V. Trevanion.
1. In an affidavit ^HIS was an action on a promissory note by the indorsee against the
d^^!!^Vui'c maker. The affidavit of debt on which the defendant was arrested
maker of a pro. Stated Several indorsements of the note to the plaintiff, but did not state that
noTwwwM^io^ he sued " as indorsee.'* Neither did it state the default of the indorsers.
state that the de-
debted to the Steer movcd for a rule to shew cause why the bail-bond should not be de-
plaintiff" as in- livcred up to be cancelled, on a common appearance being entered. He
s. It is also on- Submitted that the form of affidavit, given in Tidd*s Practice, was, that the
necMsary to sute defendant was indebted to the plaintiff " as indorsee," and that that form
ths default of the ^
indorsers. ought to have been followed. He also submitted that the default of the in-
dorsers should be stated.
LiTTLEDALE, J. — What objcctiou can there be ? The title is traced to the
plaintiff, and it is not necessary after that to call him indorsee ; neither is it
necessary to state the default of the indorsers.
Rule refused.
Doe d. Smith and others v. Roe.
Serrice In eject- WjfUMFREY movcd for judgment against the casual ejector. There were
tenant,°of a^decia- ^^^ tenants in posscssiou, and the declaration and notice served on one,
rstion and notice ^as by mistake directed to the other tenant. The service on that other
ther, is not good, was correct. It was submitted, that being directed to the tenant in posses-
sion, it was sufficient, and that, at any rate, a rule nisi would be granted.
LiTTLEDALE, J. — That wiU not do. It is not sufficient even for a rule nisi.
Rule refused.
MICHAELMAS TERM, 1836. 333
Bail Court.
Do£ d. Brickdale v. Roe.
^HIS was a rule for judgment against the casual ejector. The afRdavit Hale umi for
stated an attempt to serve the tenant in possession on the premises {lle*«^u«Uortor
the day before the term, when he could not be found, and service was in refused, lauiough
consequence made on another person on the premises. It also stated an heIISibe«ke«!^
attempt to serve the tenant with another declaration in ejectment in March iocoutof ihew«j
last, as also an attempt to serve him in two different counties with a writ of bef^ui^tpm.
summons in June, issued by the lessor of the plaintiff for the rent of the »» **»« •ttempt to
premises. The lessor*s attorney swore that he had been attempting to find made only the
the tenant ever since June, and had been unable to find him ; and the sheriff's ^^^ ***^*^* ***•
officer swore that he believed he had been purposely keeping out of the
way ever since.
Rogers submitted that he was at least entitled to a rule nisi, as the case
was similar to that oiDoe d. Lvff\, Roe (a) ; and that the case was not within
the principle of those cases where the Court refused to grant a rule on ac-
count of the first attempt to effect the service having been made just previous
to the commencement of the term, as the affidavit shewed that it was quite
useless to go earlier.
LiTTLEDALE, J. — It docs Hot appear to me that I can grant even a rule
nisi, I ought not to encourage persons to put off the attempt to effect a
service to the last moment before the commencement of the term, with the
hope that the case may meet with the indulgence of the Court. Parties
ought to go a few days before the term to effect the service.
Rule refused.
In Hilary Term following, a rule tiisi was granted by Patteson, J. on an
affidavit stating the same facts, together with attempts to serve the defendant
on the 27th of December^ and on several subsequent days before the term.
(a) 3 Dowl. P. C. 575.
Doe d. Hubbard v. Roe.
T
HIS was a motion for judgment against the casual ejector. The premises service of a de-
sought to be recovered were six cottages, which had been demised by c**"^"* *° «J«<^
deed to Miles, The ejectment was brought for breach of covenants in the liS alone, of pre-
lease. Miles occupied one of the cottages, and let the others out in single "*^* *** ^^ ***"
rooms to weekly lodgers. Miles alone had been served in order to save ex- weekly lodgers, \m
pense, as there were so many lodgers. f **' »ufficient, un-
* .^ o leas he occupiee
l>art of the house
Hoggins submitted, that the occupation by the lodgers waa the occupation SSJjlJd? *** '*^
of the landlord, and that be was entitled to a ride as to all the cottages.
334 TERM REPORTS in the KING'S BENCH.
Bail Omrt. LiTTLEDALE, J. — The Occupation by a lodger is occupation by the land-
v^v^i^ lord where the landlord occupies some part of the same house himself. Here
^^ they are different houses, and you can only have a rule as to the one in which
HuBBABD ^ilcs lives.
Rule absolute accordingly.
V.
Roe.
Doe d. Finch v. Roe.
Rule miri for ^^OMLINSON moved for judgment against the casual ejector. — There had
jodgment agvinst heen regular service on all the tenants in possession except one. The day
refused, where before the term there had been service on his mother-in-law on the premises.
thed'a^iSb^Uie ^" *^® ^"' ^^^ ®^ *^® ^^^^ ^** ^'^® acknowledged that she had received the
term on a relation declaration on the previous day^ and on the second day of the term the
tiie tenut'on tile' tenant himself acknowledged he had received the declaration, but refused to
second day of the say ou what day. It was submitted, that on the authority oi Doe v. Roe(a)f
idhe'hid^r^dt' *t least a ride nUi would be granted.
ed tlie declara-
to Mj on wiut LiTTLEDALE, J. — I think cnough has not been done. The attempt to e£fect
^^y* the service should not be put off until the last moment before the term.
Rule granted as to the other tenants only,
(a) 2 Dowl. & Ryl. 12.
Doe d. Hewson v. Roe.
If tiie notice at JXYLES moved for judgment against the casual ejector. — The premises
ciamtion in eject^ sought to be recovered had been demised by deed to two persons who
ment is addressed yj^xe partners in busiucss, and carried on their trade and had joint stock
to two persons ,* . , , ., .,ii mi • t
wiio are joint- on the premises, but only one of them resided there. The notice at the
tenants, one only fQQ^ q{ ^he declaration was directed to both the tenants, but one only had
of whom u served, » /. i /•
the mie for jndg- been personaUy served ; there was some doubt, therefore, as to the form
SISlTfji^r'*** of drawing up the rule. He submitted, that if the tenant who did not reside
can only be for on the premises, was to be considered as a tenant in possession, he had been
the polTes^on^of scrvcd by the service on his joint-tenant ; but if he was not a tenant in pos-
the one served, session, it was of course unnecessary to serve him at all, and that therefore
the rule should be for judgment against the casual ejector generally, for the
premises mentioned in the declaration, leaving the lessor of the plaintiff to
execute the writ at his peril.
LiTTLEDALE, J. — The rule must be for judgment as to the premises in
the possession of the tenant served, but will take no notice of the other.
Ride absolute accordingly (&).
(6) See the next case.
MICHAELMAS TERM, 1836. 335
BaildnirU
Doe d. Weeks v. Roe.
1> F, RICHARDS, the same day, moved for judgment against the casual where fouroot
JM.m/9 , rr*. , . - . /• ^1 1 t J of five parish offi-
ejector. J he premises were m the possession ot the churchwardens ^„ ^^^ served
and overseers as parish officers, only four out of five of whom had been *» ejectment, the
served. He submitted, that they might be considered as joint-tenants, and against the casual
that he was entitled to have judgment generally. ejector can only
't o o J be as to the pre-
mises in the pos-
LiTTLEDALE, J. — No, the rulc must be as to the four served only. s^wnof Uie
Rule absolute accordingly.
Doe d. Watts v. Roe.
"DOGERS applied for a rule to shew cause why the tenant should not Application
give the usual undertaking, and enter into the recognisance required by ment under u>«
the statute 1 G. 4, c. 87, s, 1, besides enterinir into the common consent »t«t. i o. 4, c cr,
, . ^ . s. 1, tlie tenant in
rule. The only point in the case was that the original lease had been as- possession being
signed to the present tenant in possession. Slol^Mnc^e.
LiTTLEDALE, J. thought that circumstance was immaterial.
Rule nisi granted, which was afterwards made
absolute, no cause being shewn.
BiDDULPH V. Gray.
pffT" H, WA TSON shewed cause, in the first instance, against a rule for i. Notice of an
discharging the defendant out of custody under the Small Debtors' tbe8mS?i)ebtore*
Act, 48 G. 3, c. 123, and objected to the affidavit of the service of the notice ^^» '«^ ^*^ »
of the application, given under the rule H, T. 2 fT. 4, I. 90 (a), that it stated ill^bouse:— sii,
the notice had been served at the plaintiff's *' town residence, at Mr. TomlinSf not sufficient.
at &c., by delivery to a servant of Mr. Tomlins" This he submitted was to such^a uotkeis
not sufficient. "^^ ^■3^«* ''^
appearing to shew
cause against the
Manself contrd, submitted, that by appearing to shew cause against the ^'**
rule, the objection to the service was waived. He also submitted, that the
service was sufficient.
LiTTLEDALE, J. -The objcction is not waived by the appearance to shew
cause against the rule. It does not appear from this affidavit but that the
place where the notice was left, was merely the plaintiff's lodging for a few
days ; it is not sufficient.
Rule refused.
(a) 1 Dowl. P. C. 195 ; see also Kelly v. Dichenson, 1 Dowl. P. C. 546 ; and Gordon v.
Twino, 4 Dowl. P. C. 560.
336 TERM REPORTS in the KING'S BENCH.
BailCottrt. HlTCHCOCK V. SmITH.
Service of a ^ Q, JONES movcd to make a rule to compute absolute, on an affidavit
oD^ a woriTrnMn * Stating the rule nisi to have been served on " a workman at the house
at the house of ©f the defendant."
the defendaut, is
uot sufficient.
LiTTLEDALE, J. — That is not sufficient. It does not appear that the work-
man was even in the employ of the defendant.
Rule refused.
Salisbury v. Sweetheart.
Service of a f^ C, JONES moved to make a rule to compute absolute, on an affidavit
M ui^iMdUdy ' stating that the rule nisi had been served on the landlady of the house
of the house whcrc the defendant lodged.
where the de-
feudaut lodges^ is
Dotsuffidenu LiTTLEDALE, J. — That is not Sufficient. It does not appear that she had
any authority to receive it.
Rule refused.
Thomas v. Lord Ranelagh.
Service of a XT' WILLIAMS moved to make a rule to compute absolute. The affi-
o^aservautatUie * davit Stated that the defendant had been personally served with the
house of the de. ^nt of summons at his house in Cork Street, that an appearance had been
left hto house a entered for him under the statute, and notice of declaration had been served
DioDth previously, qq ^ servant at the house in Cork Street. The rule nisi to compute had
held sufficient. .
been served at the same house on a person whom the deponent believed to
be the defendant's servant, and who said that the defendant had lefl London
a month since. The deponent also swore he believed that the defendant had
no other residence.
Coleridge, J. — There would be no doubt if the affidavit had not stated
that it had been said the defendant had left London a month back, but still I
think you may take your rule.
Rule absolute.
Martin v. Strong, Clerk.
King*s Bench.
November 4tk.
1. Words spokeu HPHIS was an action for words spoken of the plaintiff in his profession as a
a^Mitab*"aMo^^ man-mid wifc. It was tried before Littledale, J. at the last Assizes for
ciatioD to ano- Gloucester, when a verdict was found for the plaintiff for 2001. It appeared
thrcoDd^t^o?a ^^^^ ^^^ plaintiff was the assistant to the surgeon and accoucheur of an asso-
medicai maa em- ciatiou for the delivery of presnant women, and that some complaints had
association, are been made of his conduct. A meeting of the association was in consequence
not a pKviieged called, at wliich the defendant, who was vicar of the parish and a member of
commuuicatiOD. , .
8. Semtie, if the association, presided in the chair. A resolution was agreed to by the
they had been
spoliea at a meetiog of the associatioOf held for the consideratiou of the medical oao't coaduct, it would
be otherwise.
MICHAELMAS TERM, 1836.
337
Martin
V.
Strong.
members present, after which the defendant left the chair. The defendant King*t Bench,
immediately afterwards entered into conversation with Mr. Hicks, one of the
members of the association, who was present, when, having referred generally
to what he had heard of the plaintiff, Mrs. Hicks said she insisted, as a
member of the association, on knowing what it was. The defendant then
spoke the words which were the subject of the present action, and Mrs.
Hicks was called as a witness to prove them, lliere was no malice shewn
on the part of the defendant.
Sir JV, W. Folktt now moved for a rule for a new trial, on the ground
of misdirection. The learned judge, as he understood, told the jury, that
had the words been spoken previous to the defendant leaving the chair at
the meeting, that he had no doubt it must be considered a privileged
communication ; but that if spoken after the defendant left the chair, the
jury must consider whether it was under such circumstances as rendered it
a privileged communication. The question, whether or not this was a pri-
vileged communication, he submitted was a question of law, which should
have been decided by the judge, and was not a question of fact for the
consideration of the jury. He submitted also, that it was immaterial
whether the defendant had or had not left the chair of the meeting ; Mrs.
Hicks, as well as the defendant, were both members of the association,
and the defendant had a right therefore to make the communication now
complained of, which concerned a person employed by the association. Even
supposing, therefore, that the meeting was at an end, the words spoken must
still be considered as privileged ; Wright v. Woodgate (a), M*DougaU v. Cla-
ridge (6), Bromage v. Prosser (c).
Lord Denman, C. J. (d), — We will see my brother UUkdale as to what
occurred at the trial.
Cur. adv, vull.
Lord Denman, C. J. afterwards {Nacemher 8th) gave judgment. — In this
case, which was an action for words spoken of a man-midwife, the question
was, whether it was a privileged communication. It was supposed that
Mr. Justice LittkdaU had left the question of law to the jury, whether it
was a privileged communication or not ; but he states that he did not do
so, but laid it down, that (assuming that the circumstance of the inquiry
having been conducted before the committee, would make all the proceedings
before that committee privileged,) it was a question for the jury whether it
was a part of the proceedings before the committee, even although the de-
fendant might have left the chair, as it did not necessarily follow that the
proceedings were at an end. He says that the jury found, that iu point of
fact it was no part of those proceedings. The rule was moved for also on
the ground that these two parties had a right to enter into the discussion as
members of this association. We do not accede to that position ; it is a
claim of privilege much too large. We think, therefore, that there mdst be
no rule granted.
Rule refused.
(a) 2 Cromp. M. & Ron. 573 ; 1 Tyr. & 296 ; 1 Car. & Payne, 475.
Gr. 12. (d) Pattetou, Williams, aod Coleridgt, Jt.
'6) 1 Camp. 267. were also in Court.
[e) 4 Barn, k Cres. 247 ; 6 Dowl. & R^K
VOL. II. Z
?
338
TERM REPORTS in the KING'S BENCH/
King's Bench,
v^^/^ Lilly v. Hays.
November Qih,
If a person who HpHIS WES an action of assumpsit for money had and received, tried at the
agent h«rmonej sittings aftcf last Trinity Term at Guildhall, It appeared at the trial
•eui to him to pay that the plaintiff and defendant had both had some transactions with one
person, and ac- Wood, and that Wood owed money to both. Wood went to reside in Scotland^
knowledges he ^jjj remitted a sum of 100/. to the defendant, for the purpose of paying it
for that purpose, ovcr to the plaintiff. The defendant, in the 6rst instance, did not appro-
the third person pyjate this sum to his own debt, he havinff received of Wood ^ bill for it,
may maintain at- ^ ^ ,
noNf Ml for money which was not then due. The defendant had mentioned to some persons
had and received. ^^^ y^^ j^^j received this money for the plaintiff from IVood^ and had allowed
that fact to be communicated to the plaintiff. Wood subsequently became
insane, and the defendant refused to pay the money to the plaintiff, where-
upon the action was brought. It was objected at the trial that the plaintiff
ought to be nonsuited, as there was no consideration moving from the plain-
tiff to the defendant ; but Lord Denman^ C. J. refused to nonsuit him^ and a
verdict was then found for the plaintiff for 100/.
Kelly now moved to set aside the verdict for the plaintiff and for a new
trial. — There was in this case no consideration moving from the plaintiff for
the promise so as to entitle him to recover this money. The cases of Bourn v.
Mason (a\ Crowe v. Rogers (b), and Williams v. Everett (c), and a long series
of subsequent cases, leave this case quite untouched. The effect of those
cases is, that where money is paid by a third person with directions to pay
it over, that unless some act is done by the defendant, the plaintiff is not
entitled to compel the payment over to him. Here there was no commu-
nication between the plaintiff and defendant as to the money. Even assuming
that the defendant did authorize the witness to tell the plaintiff he had
received the money for him, and that a promise to send him the money may
thereby be implied, still there was no consideration moving from the plaintiff.
The defendant derived no benefit from the money, and there was no for-
bearance towards him ; so that until actual payment it was competent to the
defendant to revoke that promise, and until then he retained the money as
the money of Wood, The cases shewing that the consideration must move
from the plaintiff, are all collected in Selwyn^s Nisi Prius, tit. Assumpsit,
The late case of Price v. Easton {d ) is also an authority to shew that there
was not sufficient consideration moving from the plaintiff in this case.
Patteson, J. — There was abundance of evidence left to the jury, to shew
that the defendant had stated he had this money in his hands for the use
of the plaintiff, and that he had allowed that fact to be communicated to the
plaintiff. The only question therefore is, whether or not there was a con-
sideration moving from the plaintiff. It seems to me, that in a case of
money had and received to the use of the plaintiff, there is seldom a direct
consideration moving from the plaintiff without an agency. Put the case of a
man sending a sum of money to the general agent of his creditor, and the
(a) 1 Vent. 6 ; 2 Keb. 454, 457, 527.
(6) 1 Stni. 592.
(r) 14 East, 582.
(d) 4 Barn. & Adol. 433 : 1 Nev. & Man.
303.
MICHAELMAS TERM, 1836.
339
Lilly
Hays.'
receipt by the agent ; could there be any doubt that as soon as the agent King*t Beach.
received it he would be accountable to the person for whom he had received
it ? Could he say, in answer, that the consideration did not move from that
person ? Does it not move by the money having been sent ? So it seems to
me that the plaintiff in this case, though not the general agent, yet having
received the money for the use of the creditor, and having admitted that he
had done so, becomes the debtor of the plaintiff, and the consideration does
move from the plaintiff by the instrumentality of H^oodt &nd that for this
purpose the defendant was the agent of the plaintiff.
Williams, J. — I am of the same opinion. The defendant must be con-
sidered as the agent of the plaintiff. The act of Wood having been adopted
by the defendant, creates a sufficient consideration for the promise, the
evidence being complete that the defendant admitted the receipt of the
money for and on account of the plaintiff.
Coleridge, J. — I agree with the principle laid down by Mr. Kellif. The
view which my brother Pat tf son has taken of the case removes all difficulty.
We must look to see whether the agency does not supply the consideration
which is necessary. It seems to me that it does, and that the facts here
shew' sufficient consideration moving from the plaintiff.
Lord Denman, C. J. — I thought that the defendant made himself the
plaintiff's banker in respect of this money.
Rule refused.
GrINDALL V. GODMAN.
n^HIS was an action of assumpsit tried before Alderson, B. at the York
Spring Assizes, 1835. The action was for expenses incurred by the
plaintiff, and for the amount of the liabilities he was under to an attorney for
indicting the defendant for the ill usage o£ his own wife. It appeared that
he had grossly ill used her^ and shut her up for fifteen months. He was
indicted for this ill usage^ convicted, and sentenced to a fine of 50/., and
twelve months imprisonment with hard labour. At the end of six weeks he
was let out of prison by an order from the Secretary of State. It was for
the expenses of this prosecution that the action was brought. There was no
promise or undertaking to pay these expenses. The defendant pleaded non
assumpsit t on which issue was joined. Afler the plaintiff's case was proved
at the trial, it was objected that it was not a case in which he could recover,
and a verdict was then found, by consent, for the plaintiff, with liberty for
the defendant to move to set it aside and enter a nonsuit. A rule having
accordingly been obtained in Easter Term last ;
Creswell now shewed cause. — There can be no question in this case, but
that the defendant has grossly misconducted himself towards his wile, the
conviction puts that beyond dispute. Now it is a clear rule of law, that
if a man ill uses his wife, any person interfering in order to protect her^
November 11 th.
A person who hut
laid out money
for indicting a
littsband for ill
luageof hit wife,
cannot recover it
from tiie husband
ou an implied «r-
tumptit.
i
340
TERM REPORTS in the KING'S BENCH.
Gbindall
V.
GODMAN.
King*i Bench, can recover tlie expenses he is necessarily put to. The case of Shepherd v.
Mackaul(a), is an authority for that position. That was an action against a
husband for expenses incurred in exhibiting articles of the peace against him,
for the protection of the wife. Here, instead of exiiibiting articles of the
peace, the plaintiff has indicted the defendant for the protection of the wife.
The only distinction to be drawn is, that there the action was brought by the
attorney, but that is an immaterial distinction, as part of the money now
sought to be recovered has actually been spent by the plaintiff for the pur-
pose of the prosecution, and for the remainder he has become liable to an
attorney. No distinction, therefore, in principle, can be drawn. The case
of Williams v. Fowler (6), is also an authority for the plaintiff. — [Coleridge,!.
— There was in that case some evidence of an undertaking on the part of the
defendant to pay the sum claimed.] — ^The decision did not go entirely, how-
ever, on that ground. The case of Harris v. Lee (c) shews, that although a
party might, perhaps, not have a remedy for money lent to a wife to procure
necessaries, on the ground that the wife might not have been supplied with
those necessaries, yet, if the money was actually spent in procuring and sup-
plying the wife with necessaries, he has. a remedy against the husband. In
the case of Jenkins v. Tucker (d), part of the claim was for money spent in
paying the wife's debts ; and it was intimated by the Court, that, as to that
part of the claim, the action was not maintainable. If this had been an action
for money lent to pay tlie attorney's fees and the expenses, it would liave
been similar to that case, but being for money actually spent in procuring
necessaries, the plaintiff is entitled to recover.
R. Alexander and fVightman, contrd, were stopped by the Court.
Lord Denman, C. J. — We are all satisfied that this action cannot be main*
tained, and therefore this rule must be made absolute. It is impossible to
say that under any circumstances, the prosecution by indictment of a hus-
band by his wife can be necessary. There is another mode of protection ;
she might have exhibited articles of the peace, and if that had been rendered
necessary for her protection against her husband, the case of Shepherd v.
Mackoul shews he might have been made to pay the expenses incurred.
In the case of IVilliams v. Fowler , there was an express agreement on the
part of the husband to pay costs. In the case oi Harris v. Zee, the question
was, whether the trustees under a husband's will could be called upon to pay
money expended on a wife's behalf, to cure her of an illness arising from the
husband's misconduct, and the Lord Chancellor thought it could be done,
considering that what was spent was to obtain necessaries for the wife. If,
therefore, an indictment preferred against a husband cannot be considered
necessaries, there can be no ground for charging the husband to pay money
advanced to enable her to pursue that course.
Patteson, J. — It is quite clear, upon an examination of the cases, that the
liability of a husband is confined to necessaries. It is impossible to say, that
indicting a husband for an assault, could be a necessary method of providing
for the protection of his wife.
(a) 3 Carapb. 326.
{b) M'Clel. fie YouDge, 269.
(c) 1 Peere Williamv, 482.
(rf) 1 H. Black. 90.
MICHAELMAS TERM, 1836. 341
Williams, J. — And for that reason there is no ground for raising an as- King*s Bench.
sumption in point of law, without which this action cannot be maintained. v^n^^
Grinoall
V.
Coleridge, J. concurred. Rule absolute. Godman.
Doe d. Stilwell v. Mellish.
Nov€nU>er Sth,
npHIS was an action of ejectment to recover some copyhold land in it » • good cus-
the manor of Famfiam, tried before Lord Abinger, at the last assizes ^r ^ person who
for Surrey, A person was called to prove a surrender of the land in ques- holds an office
coonectrd with
tion, who said that he was clerk to the Castle sit Famham, that he had themami^touke
his authority from the Bishop o£ JVinchester, as lord of the manor of Fam- J^7ho1drconcor.
ham, by a patent in which there was no power given to take surrenders of rentij wiui the
copyholds, but that the custom of the manor was, that he, as well as the •'®^"**'
steward of the manor, should take such surrenders. It was objected, on the
part of the defendant, that the steward ought to be called to prove the sur-
render, but Lord Abinger was of opinion that enough had been proved. A
verdict was then found for the plaintiff.
Wordsworth now moved for a new trial, and submitted that this evi-
dence was not properly received, as there could not be a legal custom for
a second person, concurrently with the steward of the manor, to receive sur-
renders. The Court of the manor, he submitted, was composed of the lord,
the steward, the deputy steward, and the tenants, and that it did not appear
that this clerk o£ Famham Castle, was any constituent part of the Court. He
referred to Scrivens on Copyholds (a), where the cases on the subject are
collected.
Lord Denmak, C. J.— I do not know what is meant by a constituent part
of the Manor Court. This person appears to hold an office connected with
the manor, and it also appears that it is the custom for the person holding
that office to receive surrenders. I know of no position of law to prevent
a surrender from being so made.
Patteson, J.— -This person appears to have been a sort of deputy steward
for this purpose. He is a person connected with the manor, and by the cus-
tom was in the habit of receiving surrenders.
Williams and Coleridge, Js. concurred. Rule refused.
(a) Pp. 153, 154, 3d ediL
Hart v. Marsh, Clerk.
T
HIS was a rule to shew cause why a writ of prohibition should not be i. After sentence
directed to the Consistory Court of the diocese of Hereford, and the »•» the Ecciesiasti.
cal Court, a prohi-
bition does not lie, unless it to shewn clearlj that there was a total want of jurisdiction.
lu a suit in the Ecclesiastical Court, to deprive a clergyman of his living, iom* of the articles charged
him with offences cognisable at common law ; these were not objected to in the progress of the suit.
The sentence found that the article* were for the mm pmri proved. The Court reCued, after sentence, to
grant a prohibition.
342 TERM REPORTS in the KING'S BENCH. f^. j
King's Bench. Arches Court of Canterbury, In 1833, a suit of office of the judge was
^'^^^^ promoted by Robert Hart, in the Consistory Court of Hereford^ against the
^y Rev. G. W. Marsh, rector of Hope Bawdier, in Salop. The articles exhibited
Mabsh, Clerk, against Marsh, cliarged him for misconduct in getting into debt, living with
an unmarried woman as his wife, getting drunk, quarrelling and fighting in
ale houses, assaulting a person and challenging him to fight, swearing and using
threatening language, carrying on the trade of a maltster and the trade of a
flannel manufacturer, and thereby exercising himself in the course of his life
as a layman, cultivating a farm of 200 acres, without licence from the bishop,
letting out the churchyard to feed swine in, and for other acts of misconduct.
The form of the sentence was, " We have found, and it doth evidently ap-
pear unto us, that the said articles, heads, positions, and interrogatories,
given in and admitted in the said cause as aforesaid, are, for the most part,
sufficiently proved and substantiated." Marsh was then sentenced to be
suspended for the space of three years. Marsh attended the Consistory
Court several times during the suit, and knew the whole contents of the
articles and charges. AfVer the sentence, he caused an appeal to be lodged
in the Arches Court of Canterbury.
Maule and Cleasby, shewed cause against the rule. — ^This being an appli-
cation for a prohibition afler sentence pronounced, the Court will not grant
one, unless it is shewn clearly that the Ecclesiastical Court has no jurisdic-
tion ; Carslake v. Mapledoram (a). Marsh has been proceeded against in his
character of a beneficed clergyman, and for the purpose of depriving him of
his living, and the suit, therefore, could not be commenced elsewhere. All
the articles exhibited against him are matters of which the Ecclesiastical Court
can take cognizance, and where the object of the suit is deprivation, it is not
necessary that the articles should charge those offences only, over which the
Ecclesiastical Court has exclusive jurisdiction. The case of Free v. Bur*
goyne (6), proves that position. A case also occurred some years since,
where an Irish Bishop was proceeded against in the Ecclesiastical Court, and
was deprived of his bishoprick, on the ground of having committed an un-
natural crime, which is an indictable offence. All these articles charge
offences which are against the canon law. The charges for carrying on the
business of a maltster and flannel manufacturer, are a violation of the 76th
canon. Those charges, as also that of cultivating a farm without licence, it
is true, are violations of the statute 57 G. 3, c. 99, which is a re-enactment
of the statute 21 /f. 8, c. 13 (c), and which subjects Marsh to penalties, but
by the 83d section of that statute, it is expressly enacted that the powers
and jurisdiction of the bishop are not to be affected by it. In the same way,
the other charges are mostly a violation of the 75th canon (d), and though
they may partly be matters of temporal cognizance, they are at the same time
matters over which the Ecclesiastical Court has jurisdiction. There is also
an express authority in Burns Ecclesiastical Law(e), to shew that if the
Spiritual Court proceed wholly on their own canons, they shall not be at all
controlled by the common law, for they shall be presumed to be best judges
of their own laws. Assuming these to be matters of temporal cognizance
(a) 2 Term Rep. 473. (c) Gib. Cod. tit 7, c. 1.
(6) 5 Baro. & Cresi. 400 ; 8 Dowl. & Ryl. (d) Gib. Cod. tit. 7, c. 2.
179; 2 Bligh. N. S. 65; 1 Dow. & CI. 115; («) Tit. ProhibiUon, pi. 2.
MICHAELMAS TERM, 1836. 343
merely, still the object of the suit being deprivation, this Court will not grant Kin^s BmrA.
a prohibition ; Slater v. Smalcbrooke (a) and Townsend v. Thorpe (6). Any ^^
objection that can be made to the form of the sentence, in stating that the ^^
articles are for the most part proved, is a matter of appeal to the Superior Mamh, Clerk.
Ecclesiastical Court.
R, V. Richards, contrd, — The form of this sentence is clearly bad, as it
only states that the charges are for the most part proved. It therefore fol-
lows, that those charges only may have been proved, over which the common
law has jurisdiction. The charges of carrying on the business of a maltster
and of a flannel manufacturer, are in direct violation of the statute 57 G, 3,
c. 99. Under that statute. Marsh might be proceeded against, and it does not
appear that previous to the statute 21 H.S, c. 13, of which the 57 G, 3, c. 99,
is a re-enactment, the Ecclesiastical Court had, in fact, any power to punish
such an offence. The assault complained of in the same way is a matter
which is cognisable by the temporal courts only. If, then, this sentence
has been pronounced in matters over which the Ecclesiastical Court has no
jurisdiction, the cases of Qffley v. PThitehall (c) Rud Leman v. Goulty (/i), shew
that it is never too late to apply to this Court for a prohibition. The mere
fact, moreover, of the uncertainty of the sentence is also a ground for this
rule being made absolute.
Lord Denman, C. J. — Supposing the two articles as to carrying on the
business of a flannel manufacturer and of a maltster quite insufficient, still
there are several others which are cognisable by the Ecclesiastical Courts,
the most part of which the Ecclesiastical Court has found to be proved.
In order to get rid of the sentence of that Court, it is necessary to shew
that it had no jurisdiction whatever to pronounce that sentence. Upon this
occasion we cannot find that to be so, but, on the contrary, it is quite clear
that they had jurisdiction over many of the articles, and that there were only
some of them which might have been objected to. The party himself, how-
ever, consented to all the articles as propounded, and the Court proceeded
to sentence upon those articles, containing, of course, those which might
perhaps have been objected to, and upon which it is quite possible that the
Court may have held the parties not guilty. In order to set aside the
sentence given, it is necessary for the party complaining to make out clearly
that the Court had no jurisdiction whatever.
Patteson, J. — It is laid down in several cases, that after sentence pro-
hibition shall not go, unless the want of jurisdiction appears clearly on the
face of the proceedings. Here application might have been made to this
Court before sentence, but then the prohibition would only have gone to
remove those articles over which the Ecclesiastical Court had no juris-
diction. After sentence, and especially after the articles have been con-
sented to, I think the onus lies upon the party praying for the prohibition to
shew that the Ecclesiastical Court proceeded to sentence on articles over
which that Court had no jurisdiction. That has not been done in this
(a) 1 Sid. 217 ; 1 Kcb. 721, 751, 762 ; (r) Bunb. 17.
1 Lev. 138. id) 3 Term Rep. 3.
(6) 2 Lord Raym. 1607 ; 2 Str. 776.
344 TERM REPORTS in the KING'S BENCH.
King*s Beneh* <^^6* ^^ ^^^ called upon to presume it from the uncertainty of the sen-
v^v^^ tence, but I think it must be clearly shewn that the sentence proceeded on
^^"^ those articles over which the Court had no jurbdiction.
Marsh, Clerk-
CoLERiDGE, J. concurred (a).
Rule discharged, with costs.
(a) H^tZ/MfiM, J. had left the Court.
The King v. The Churchwardens of St. Michael's,
Pembroke.
November lOth,
A person lent H^HIS was a rule calling on these churchwardens to shew cause why a
SSft'oHb^ iwflfidflmM* should not issue, commanding them to pay Ann Morgan the
church mes, for instalments which had become due on the sum of 1000/., borrowed upon the
leXuUdinrand Credit of the church-rates of the parish, under the provisions of the statute
enlarging a 59 Qeo. 3, c. 134, and of the several other acts subsequently passed for the
BO Ofo, 3, c 134^ same object, and also the arrears of interest due thereon ; or to raise by rate,
s. 40, and agreed pursuant to the Said statute, a sufficient sum of money to pay the instal-
that the money '^ ,i, i.. 1 i«i
ahooid not be mcuts, and also the arrears of interest, and to pay the amount so raised to
repaid for twenty Ann Morgan, It appeared, that in July^ 1830, a vestry meeting of the
the option of the parish was held according to the provisions of the statute 59 Geo, 3, c. 134,
2^*thattbe* "" *"^ '^® churchwardcus were authorized to raise 1000/. for taking down,
churchwardens rebuilding, enlarging, and improving the parish church. This sum was
SS'estto**"^"' advanced by Ann Morgan, and an indenture was entered into by her and
raise annually, the churchwardeus in September, 1830, in which it was agreed that the said
asumequaTto^e' *""™ ^^ 1000/. should uot be called in and paid off before the expiration of
amount of tiie twenty years, unless the churchwardens should be desirous of paying off the
fttnd?or the^u^ * Same at any time before, or as soon as a sufficient sum should be raised by
timate re-payment means of the rates or otherwise, and that in the meantime interest at the rate
of five per cent, should be paid. Part of the interest had been paid, but
becoming in arrear, Ann Morgan's solicitor had collected the church-rates
that had been made, according to a power in the deed of mortgage given
her for that purpose. It was uncertain from the affidavits what was the
amount collected, and what was the sum due for interest, but no rate had
been made for the payment of any part of the principal.
Maukf shewed cause. — This mandamus is applied for in order to put in
force the provisions of the statute 59 Geo, 3, c. 134, s. 40. By that section
the churchwardens are authorized and empowered to make ra&s for the
payment of the interest of money borrowed, and " for providing a fund of
not less than the amount of the interest of the sum advanced for the repay-
ment of the principal thereof, or for repaying such principal in such manner,
and at such times, and in such proportions as shall be agreed upon with the
persons advancing any such money." It does not appear that under that
section, in other cases generally, it is imperative on the churchwardens to raise
a sum annually equal to the amount of the interest for the re-payment of the
principal, but by the latter part of the enactment they are clearly not bound to
do so in this case, as it has been expressly agreed that the principal shall not
MICHAELMAS TERM, 1836. 345
be paid off before the expiration of twenty years, unless at the option of the King's Bench,
churchwardens. That section differs considerably from the 1 4th as to the v^s/^i/
re-payment of money borrowed for repairing churches. This mandamus, ^**® ^'"^
therefore, as to the principal sum is premature, and cannot be had until Churchwardens
the expiration of the twenty years. Neither will the Court grant the man-' ^^ ,
damtu as to the payment of interest, for repeated applications have been made Pbubrokb. '
for an account of what has been received by Ann Morgan on account of the
rates, but such an account has never been given.
Sir W, W, FolUtt, contrd, — The intention of . the act is, that a sum equal to
the amount of the interest should be raised apQually for the re-payment of tlie
principal. By the mortgage deed, Ann Morgan may not be entitled to have
this sum annually paid over to her, but that does not lessen the duty of the
churchwardens to raise the sum. If this sum is not now so raised annually,
and at the end of twenty years a mandamus is applied for, the Court will
refuse it, on the ground that the churchwardens are not bound to raise the
whole in one sum, but must raise it gradually.
Lord Denman, C. J. — There is no doubt but that the writ of mandamus
must go to compel the churchwardens to raise the interest now due, and I
think also to make a rate for a sum equal to the interest, for the re-payment
of the principal. The word " annual'* is not certainly in the act of par-
liament, but it is clear that the intention of the act is, that annual instalments
of the principal should be raised. It is impossible to make sense of the
enactment without supposing it should be so raised. Then, with regard to
paying the principal, I do not think the party is entitled to be paid any
thing except the interest, because by the agreement she has postponed the
re-payment of the principal to the end of twenty years. That re-payment
must be optional on the part of the churchwardens, because the postpone-
ment is for the purpose of giving them an opportunity of using the money in
the meantime in a more beneficial way for the parish, and which will have
the effect o£ making the parish better able ultimately to repay the sum due.
The writ must therefore go to raise the interest, and a fund equal to that
interest.
Patteson, J. — The mandamus must be modified in that way. It will be
to raise the interest now due, and a fund equal to the interest for the last six
years, for the liquidation of the principal.
Coleridge, J. concurred (a).
Rule absolute in that form.
(a) Williamt, J. had left the Court.
346 TERM REPORTS in the KING'S BENCH.
King\ Bench,
The King v. The Minister and Churchwardens of Stoke
liT r iA.r Damerel.
November lOth,
office^^fViH bj a A ^^^^^ ^^ obtained in Hilary Term last calling upon the minister and
void election, and churchwardens of Stoke Damerel to shew cause why a mandamus should
polo" to\t^annot ^^^ issue, Commanding them to convene a vestry meeting for the purpose of
be tried in any elcctiucr a propcr Dcrsou to fill the office of sexton of the parish. The facts
Court will' grant a o£ the case Were as follows: — The living of Stoke Damerel was under
'a'aT" ^ ^^ sequestration, the profits being received by the Bishop as sequestrator. The
s. But where a Rev. Mr. Mitford was the officiating minister under the sequestration. The
P^""* *P" - late sexton of the parish, John Garland^ having died, a Mr. Elms canvassed
a parish bj the the parish as his successor. The office was held for life, and had no salary
^TririittoaTl'^" attached to it, the remuneration depending entirely on the fees. Mr. Mit^
yointprimA/m€k ford appointed a Mr. Symons to the office, and his appointment was confirmed
dcM refased^tT'^ '^X ^^^ rcctor, who was residing at Brussels. Mr. Mitford and the church-
es n a vestry meet* wardens refused to convene a meeting for the purpose of enabling the inha-
i^hioners*(wbo bitauts to clcct a sexton, and then Mr. Elms, who was vestry clerk, convened
also claimed the ^ vcstry for that purposc. The parish was polled, and Elms was declared
elect one,^and it to be duly elected. The meeting in the church on that occasion being with-
appeared that q^j ^]^q sanctiou of the minister, proceedings had been commenced against
ther method of Mr. Elms in the Ecclesiastical Court. The present rule was subsequently
5e^S»wt ref**''d ®PP^*®^ ^^r, the applicants contending that the right of election was in the
to grant a mm- parishioners at large ; the defendants contended that it was an ecclesiastical
minist^Md appointment, to which the ordinary, rector, officiating minister, or some other
cbarchwardens to persou having ecclesiastical jurisdiction, had the right of appointing. The
meeting.^***'^ last pcrson who filled the office of sexton occupied it for upwards of fifly
3. Aithoogb it years. There were affidavits on both sides as to the circumstances attend-
ofthe*perton^*' ing his election as well as a previous one. These affidavits agreed as to the
appointed sexton facts of a parish meeting, and votes being given, but differed as to the
other method of explanation and cause of those facts ; the affidavits for the applicants stating
u-ying the right jjj^t the parishioners on these occasions exercised a richt of election: those
being resorted to, '^ o >
by refraining fiom for the defendants, that the meeting was merely for the purpose of ascer-
wbwsb* the ^' taiuing the wishes of the parishioners, and that the actual appointment was
dence of Uie by Dr. Blackett, the then rector. There were also contradictory statements
risWonera^wouid ** ^ expressions used by Dr. Blackett on the occasion.
in time be
oT^parUest * ^'^ ^' ^* ^ollett, and Crowder, now shewed cause against the rule. —
There is no doubt but that at common law the appointment is in the rector,
and it ought to be shewn by the other side that there is a special custom for
the inhabitants to appoint. That is not done sufficiently. There is, more-
over, no instance of this Court having interfered to cause a meeting to
be convened for a merely ecclesiastical purpose like the present. In an
Anonymous case (a), an application similar to the present was refused, and
the Court said, that they could not take notice in whom the right lay
to call a vestry, and consequently did not know to whom the mandamus
should be directed. The case of Dawe v. Williams {b) may also be cited
(a) 2 Strange, 686. (h) 2 Add. Ecc. Rep. 130.
MICHAELMAS TERM, 1836.
347
as bearing on the question. In The King v. The Churchwardens of St.
Peter'Sf Colchester (a), this Court refused to issue a mandamus to make a
church-rate, on the ground that it was a matter of an ecclesiastical nature.
In Wilson v. 31 * Math {b), a prohibition was refused on similar grounds.
Besides, the office is now full, and there is no instance of this Court inter-
fering with respect to an ofBce which is already full. In The King v. The
Mayor of Colchester {c)^ a mandamus was refused on that ground. The
parishioners have another course open to try the right, namely, by refusing
to pay the sexton's fees, when the question may be tried either in an action
brought by the sexton for his fees, or by paying the fees under a protest, and
then bringing an action to recover them back. The Court will not make this
rule absolute unless the parishioners have no other means by which to try
the right. The difficulty which arose in the case of The King v. The Inha-
bitants of Wix ((f), namely, that one of the persons to whom the mandamus
is addressed is the person claiming the right, also arises in this case, as the
minister claims to be entitled to nominate to this office. — (They were then
stopped by the Court.)
Erie and JVightman, contrd. — Unless it can be shewn that there is any
other way in which the right to appoint to this office can be tried, the Court
will make this rule absolute. It is clear that a quo warranto will not lie (e).
The late case of The King v. Ramsden (/) decides that point. It is then
said that any parishioner may try the right by refusing to pay the fees, or
else by paying them when demanded under protest. This method of trying
the right, however, is not within the power of the parishioners, for they have
no power of compelling the sexton either to bring his action for his fees, or
to make such a demand for them as will enable them to maintain an action.
The person who is now appointed sexton, by lying by, and not enforcing his
rights, is daily strengthening his title, as the last election was fifty years
back, and the evidence to support the special custom for the parish to elect,
is, consequently, daily diminishing. In the absence of proof of such special
custom, the right to appoint would be determined to be in the rector as at
common law. There is reasonable ground to suppose, from the affidavits in
this case, that the right to appoint to the office is in the parishioners at
large, and it is clearly an office for which a mandamus will lie. Ile^s case (g)
is an authority directly in point. In the case of The King v. St. Margaret* s^
Westminster (^), a mandamus was granted to call a meeting for the purpose
of ascertaining the monies and rates to be assessed for the repairs of a
church. There, the mandamus was directed to the churchwardens, who are
the proper persons to call the meeting. In the present case they have
refused to call the vestry, which is a ground for granting the mandamus.
Dawe V. Williams only shews that vestries for church matters are to be
called by the churchwardens, with the consent of the minister, and is there-
fore an authority for this mandamus. Then it is said that the office is full,
and that therefore a mandamus will not lie ; but the appointment that has
Kin^t Bench.
(a) 5 Tenn Rep. 364.
(6) 3 Bam. & Aid. 241.
(c) 2 Term Rep. 259.
id) 2 Barn. & Adol. 197.
(«) Selw. Nisi Prius, tit. Quo Warranto,
(/> 3 Adol. & £]. 456 ; 5 Nev. & Man.
325 ; See alio Th€ King v. BmiU, 3 Adol. &
£1. 467.
(g) ] Vent. 143, 153 ; 2 Keb. 802, 807,
820; T. Raym.211.
{k) 4 M. <Sc Selw. 250.
The Kino
V,
The Minister
and Church-
wardens of
Stokx
DlMBBEL.
348
TERM REPORTS in tde KING'S BENCH.
The Kino
V,
The MiDister
and Church-
wardeDt of
Stokx
Dambb£l«
Kine*s Bench. ^^'^ taken place is a totally void appointment, and therefore that point does
not arise.
Lord Denman, C. J. — There were several difficulties in the way of
coming at this question, which seem to he removed. I think the refusal on
the part of the minister and churchwardens sufficient, and that in a case
where the inhabitants wish to have a vestry called, and a request has been
refused, it is reasonable to direct the mandamus, not to the inhabitants at
large, but to the churchwardens, directing them to summon the inhabitants.
Tben we come to the question, whether this is a case in which a mandamus
ought to issue. In the first instance, it appeared to me that there was no
distinct proof of any custom in the inhabitants to interfere with the right of
the minister to appoint the sexton ; but, on looking further into the affi-
davits, it appears there was evidence to shew that the last election was of
that nature. Then it is for us to see whether there is sufficient ground for
issuing the mandamus. The office has been already filled by that person, who,
by the ordinary course of law, has the power to appoint to it. The minister
has appointed, and the inhabitants think that they have a right to appoint,
and they accordingly ask for a mandamus, I must own it appears to roe, that
unless there is a very strong case to shew that what has been done is void,
we ought not to issue the writ. I think that there is no such case here,
and I think, moreover, that there is another remedy. We cannot look to
the particular circumstances under which it may be more or less politic to
interfere. Here, it is most probable that the party will demand his fees,
and it is a clear rule o£ law, that a party unwilling to recognise the officer,
may dispute his right by refusing to pay those fees ; or if the fees are
received, the party may bring his action for the extortion, and recover them
back, and thus try the right to the office. I think we cannot presume that
an officer will hold his office without regard to the emolument. It appears
to me, therefore, that there is a better and more convenient remedy than a
mandamus^ and that we ought not to give the sanction of our authority to a
supposed custom, interfering with the usual right of appointment to the
office, of the existence of which custom we are not convinced.
Patteson, J. — I am of the same opinion. I think all the minor points
are removed, and that it comes to the question, whether, under the circum-
stance o£ the office being already filled by the appointment of a person by
the minister, the Court will interfere by mandamus, I have not been able to
find any reported case, where it has been decided that a mandamus will lie to
elect to an office filled already by what is called a void election, but I have
a strong recollection that such cases have occurred, and that where the
Court has been satisfied that an office has been so filled, and the right can-
not be tried by a quo warranto^ that the Court has issued a mandamus in
order to proceed to a new election. There is a case of The King v. The
Corporation of Bedford {a) , where the Court did grant a mandamus to proceed
to the election of a mayor, the mayor who had been elected not being pro-
perly qualified ; but the Court expressed a doubt whether they could with
propriety grant the writ. This is the only case I have been able to find, but
(a) 1 East, 79 ', and see The King y. The Corporation of The Bedford Level, 6 East, 3^.
lillCHAELMAS TERM, 1836.
I am confident that the practice is, that when the question cannot be tried
by quo warranto^ then the Court will grant a mandamus to proceed to a new
election. I do not think, however, that that remedy can be granted, except
in cases where the Court is fully satisfied that the election is void. In this
case primd facie the appointment by the rector would be right. It is said on
the other side, that there is a custom for the inhabitants to elect the sexton,
and some evidence is given in the affidavits by a person who was present at
the last election, but that evidence is not conclusive. Nevertheless the office
is full by the appointment of the rector. Under these circumstances, I
should say, if there were no other remedy, it would be right to grant a matt'
damus. But there is clearly another remedy, either by refusing to pay the
sexton's fees, or by paying them, and then bringing an action to recover
back the amount. The sexton will hardly continue in his office without
resorting to some method of enforcing his fees ; but whether he does so or
not, we cannot enter into the question of the convenience or inconvenience
of leaving the matter in that state.
Williams, J. — I am of the same opinion, for it appears to me that there
is unquestionably another remedy, which remedy I cannot consider to be so
remote as is suggested. We must consider the sexton as being in the office,
and of course endeavouring to recover the fees of that office. I cannot con-
ceive that he will wait until all the evidence is extinguished, in order to dis-
prove the custom of election in this parish. That custom is so far doubtful,
that the Court ought not to interfere where there is another remedy which
has been pointed out already.
Coleridge, J. — I assume that a mandamus would lie for this office, and I
also assume that a quo warranto would not ; still I think, under the par-
ticular circumstances of this case, we ought not to grant the mandamus. My
opinion rests very much on the grounds stated by the rest of the Court.
This office is full, and must be taken to be so by the appointment of him in
whom the right primd facie is vested. The affidavits bring that right per-
haps into some question ; but the balance is stilly I think, in favour of the
right. However, the office being full, and by him in whom the right is
primd facie vested, I should expect to see the balance of evidence very
clearly the other way, in order to satisfy my mind, before I should think it
right to issue a mandamus, if there were any other method of trying the right.
I am satisfied that there is another mode, and though it is said that it is not
80 convenient, because the sexton may suspend its operation for a time, still
I do not think that the present is a state of things which calls upon us to
interfere by mandamus. The inhabitants are of opinion that they have the
right to appoint, and I think we may take it for granted that they will have
in a short time the means of bringing that right to trial.
349
King's Bench,
The King
r.
The Mioister
and Church-
wardens of
Stoke
DlMBIEL.
Rule discharged, without costs.
350
TERM REPORTS in the KING'S BENCH.
King*t Bench,
November \5th,
A local ioclosure
act passed before
the genentl statute
1 & 8 G. 4, c. 83,
enacted, tliat tlie
laudato be allot-
ted and awarded,
in mediate] J aller
such allotments
were made^ should
be, remain, and
enure to the per-
sons to whom they
were allotted,
who should
from thenceforth
stand and be seis-
ed and possessed
thereof, to such
and the same uses
&c., as the seve-
ral and respective
messuages ice., in
lieu of which such
allotments should
be made, were
held under, llie
commissioners
appointed under
this act, set out
an allotment to a
person in lieu of
certain open field
lands and rights
of common, and
gave him posses-
sion of it, but did
not execute their
award until seve-
ral jears after-
wards :—£f«M,that
under the above
section, the legal
estate passed im-
mediately on the
allotment being
made, and before
the award was
executed.
Doe d. Harris v. Saunder.
npHIS was an action of ejectment tried before WilHamSt J. at the Oxford
Summer Assizes, 1835, when a verdict was found for the lessor of the
plaintiff, subject to the opinion of the Court upon the following case.
Two demises were stated in the declaration by Congreve Harris ; one on
the 1st January, 1829, and the other on the 1st January, }SS5, The lessor
of the plaintifiT claimed the premises in question, which consisted of ten acres
and three roods of land, situated in the hamlet of ChadUngton IVcht, and in
the parish of Charlbury, as mortgagee in fee of one Jonah Smith, under deeds
of lease and release, of the 1 7 th and 1 8th December, 1 824, between the said/ojioi
Smith and Alary his wife, of the one part, and the said Congreve Harris, the
lessor of the plaintiff, of the other part. These deeds were in the ordinary
form, and granted, released, and confirmed, unto the said Congreve Harris
{inter alia), " a messuage and building, lands and premises, by the open field
description being half-a-yard land, late Daniel Smith's, and all such allotment
or allotments, pieces or parcels of land or ground and premises, which the
commissioners, acting under or by virtue of an act of parliament made and
passed in the 5 1 st year of the reign of his late Majesty King George the
Third, intituled, ' An Act for inclosing certain lands in the hamlets of Chad"
Ungton West, Chadlington East, and Chilson, in the parish of Charlbury^ in the
county of Oxford,' had set out, or should set out, allot and award, iu lieu of
and satisfaction for the open field lands, grounds and right of common of the
estate of the said Jonah Smith, called late Daniel StnUKs, consisting of half-a-
yard land in Chadlington aforesaid, and each of them, and every part thereof."
The usual provisions for redemption, &c. followed. The commissioners
under the above recited act duly made their award on the 2d July, 1825,
and they thereby did set out and allot, and did thereby award unto and for
the said Jonah Smith, in lieu of and satisfaction for the open field lands,
grounds, and right of common of his estate, called late Daniel Smith's, con-
sisting of half-a-yard land, the allotment next therein described^ that is to
say, one plot or parcel of land or ground, situate in the hamlet of Chadlington
West, at Crooked Oaks Furlong, containing ten acres and two roods, bounded
by the Chipping Norton road, by the second allotment to said Jonah Smith,
and by the 21st allotment to Sir Edwin Bayntun Sandys ; the boundary fences
of the last described allotment are against the Chipping Norton road, and
against the second allotment of the said Jonah Smith. The premises sought
to be recovered in this action, were the ten acres and two roods of land
allotted by the commissioners as above ; and it appeared that the whole of
the title-deeds relating to the property, were placed in the hands of the soli-
citor of Congreve Harris, at the time of the execution of the mortgage-deeds
in December, 1824, and had continued uninterruptedly in the possession of the
said solicitor, or of Mr. Harris, ever since.
The defendant claimed to be a prior mortgagee, under indenture of mort-
gage of the 21st November, 1818, whereby the said Jonah Smith granted and
demised for 500 years unto Samuel Saunder (the defendant) his executors,
MICHAELMAS TERM, 1836.
351
administrators, and assigns (inttr aUa) — ** One plot or parcel of land or ground, King*t Btneh,
being one of the allotments in lieu of half-a-yard land, late Daniel Smith'Sf v^v>^^
purchased by said Jonah Smith of one John Smith, situate in the said hamlet ^°" ^' ^^»*"
of Chadlington West, at Crooked Oak Furlong, containing ten acres two roods, Saun'dbr.
&c.*' This description of the allotments was the same as one which had
been delivered to Jonah Smith by authority of the commissioners in 1817,
and which was afterwards inserted in the award, as it is above set out. That
description shewed these lands to be those sought to be recovered in the
present action. The defendant also proved indentures of lease and re-
lease of 28th and 29th December, 1826, between the said Jonah Smith of the
first part, the said Samuel Saunder of the second part, and one Edximrd Vert
Holloway of the third part ; which recited the indenture of mortgage of No"
vanber, 1818, and that doubts had been entertained with respect to the vali-
dity of the said indenture o{ November, 1818, and whether the said Jonah
Smith was, at the time of the execution thereof, seised of the fee simple of
said hereditaments and premises thereby demised, by reason that the com-
missioners under the said Act of Parliament for inclosing the open and com-
mon fields of Chadlington aforesaid, had not then signed their award ; and it
then ratified and confirmed the premises to Samuel Saunder, his executors,
&c. The commissioners set out the allotments, and among other proprietors
put Jonah Smith in possession of this allotment of ten acres and two roods, in
the year 1812, and he remained in possession until his death in 1827, since
which time to the present, his wife A/ary and the defendant in this action,
had been successively in possession. The question for the consideration
of the Court is, whether under all the above circumstances, the lessor of
the plaintiff is entitled to recover the premises in question. If the Court
should be of that opinion, then the verdict is to stand ; if they should be of
a contrary opinion, then a verdict is to be entered for the defendant.
W, J, Alexander, for the lessor of the plaintiff. — By the words of the 46th
section of the Inclosure Act, 51 G. 3, c. xxv, referred to in the case, coupled
with the 3 4th clause (a), the lessor of the plaintiff contends that the legal
(a) The following were the clauses of the
act referred to in argument z^-
34th. And be it further enacted. That the
said commissioners shall, and they are hereby
authorised and required to set out, divide and
allot, all the residue and remainder of the
lands and grounds hereby directed to be di-
vided, allotted, and inclosed, unto and amongst
the several proprietors thereof, and persons
interested therem, in proportion and accord-
ing to their several and respective lands,
grounds, rights of common, and other rights
and interests into and over the same.
43rd. And be it further enacted. That if
any person hath sold, or shall at any time be-
fore the execution of the award of the said
commissioners, sell his, her, or their interest,
right, title, or property, in, over and upon the
said open fietas, common pasture, common
meadows, down, and other commonable lands
and waste grounds, or any part thereof, to
any person or persons whomsoever, then and
in every such case it shall be lawful for the
said commissioners, and they are hereby au-
thorized and required, with the consent in
writing of such vendor or vendors respectively,
to make an allotment or allotments of the
land unto the vendee or purchaser in such
sale, or to his or her heirs or assigns, for or in
respect of such right, interest, and property so
sold as aforesaid, and every such vendee or
purchaser, and his or their heirs and assigns,
shall and may, from and after the execution
of the said award, hold and enjoy the lands
so to be allotted to her, him, or them, as afore-
said, in the same manner to all intents and
purposes, as the vendors in every such sale
might, could, or ought to have held or enjoyed
the same, in case such sale had not been
made.
46th. And be it further enacted. That the
several lands and grounds so to be allotted
and awarded upon Uie said division and inclo-
sure to the several persons concerned, and the
several messuages, lands, tenements, old in-
closures, new ulotmenta, and other heredita-
ments which shall be exchanged in porMiance
of this act, or the said recited act, (The Ge«
352
TERM REPORTS in the KING'S BENCH.
King*$ Bench, estate in the allotments does not vest until the award is finally made by the
N^v^ commissioners ; and that it thence follows, that on the making of the award
Doe d. Harris in Jufy, 1825, the legal estate in the allotment now sought to be recovered,
Saunoer. vested in the lessor of the plaintiff, in the same way that he then had the
legal estate in the old tenements, in respect of which the allotment was made.
He also contends, that the defendant, though a prior mortgagee of the allot-
ments, yet not having taken possession of the title-deeds to the property, by
which he enabled the mortgagors to commit a fraud, has an equitable interest
only. The case of Doe d. Sweeting v. Hellard (a), supports this view of the
construction of the 46th section, to which the clause of the Act of Parlia-
ment set out in that case, is very similar. The judgment of Lord Tenterden
in the case of Farter v. Billing (6), is a strong authority to the same effect.
The case of Kingsleyv. Young (c), which may be cited as an authority on the
other side, is entirely distinguishable ; for in the act there under consideration,
there was an express clause giving a power to sell and convey the allotments
before the execution of the award. The judgment of Lord Eldon, in the
second report of that case, is rather a confirmation of the construction now
contended for. The case of Lowndes v. Braif (d), is also to the same effect.
Cane v. Baldwin (e), may also be cited as bearing in some measure on the
point. Doed. Dixon v. Willis (f), cannot be cited on the other side, as it does
not appear from the report what the particular words of the clause of that
Act of Parliament were, nor does the case of Farrer v. Billing appear to have
been cited in argument. It is also said that the case of Doe d. Dixon v. JVillis
was overruled by Sir John Leach in 1833, in the case o( Mortlock v. Kentish,
which is not reported. If this construction of the Act 51 Geo. 3, c. xxv,
namely, that the legal estate does not vest until the award of the commis-
sioners is executed, be correct, then by the award in Jufy, 1825, it was vested
in the lessor of the plaintiff, who was mortgagee of the old tenements under
the deeds of December , 1824. The cases of Goodtille d. Norris v. Morgan {g\
and Right d. Jefferys v. Buckuell(h), shew that it did not vest in the de-
fendant under the prior mortgage deed of 1818, as the lessor of the plaintiff
had all the title-deeds, and had no notice of the prior mortgage. The de-
fendant also in this case stands in the place of his mortgagor, and comes within
the general rule, that a mortgagor cannot dispute the title of his mortgagee.
Cripps, contrd. — The words of the 46th section of this Inclosure Act are
quite sufficient to vest the legal estate in the allotments immediately on the
commissioners making them, so as to give the parties to whom they were
Deral Inclosure Act, 41 G. 3, c. 109) imme-
diately after such allotments and exchanges
are made as afore&aid, shall be, remain, and
enure to the several persons to whom the same
shall be respectively allotted or given in ex-
change as aforesaid, who shall from thenceforth
stand and be seised and possessed thereof, to
such and the same uses, estates, trusts, and
purposes, and subject to such and the same
wills, settlements, limitations, powers, re-
mainders^ leases (except leases at rack rent)
charges, and incumbrances, as the several
and res[-ectife messuages, lands, tenements,
old inclosures, or other nereditaments, in lieu
of which such allotments or exchanged pre-
raises shall be respectively made or taken as
aforesaid, are now held under, subject to or
liable to be charged with, or a0ected by, or
might or would have been held under, or sub-
ject to or liable to have been charged with,
or affected by, in case this act had not beeo
made.
(a) 9 Barn. & Cres. 789 ; 4 Man. & Ryl.
736.
(M 2 Bam. & Aid. 171.
(c) 17 Vcs. 468 ; 18 Ves. 207.
(d) 1 Sugd. Yen. & Pur. 342, 9th edit
(e) 1 Stark. 65.
m 3 M. & Payne, 24 ; 6 Bing. Ul.
{£) 1 Term Rep. 756.
{h) 2 Barn. & Adol. 278.
MICHAELMAS TERM, 1836. 353
allotted, the right to dispose of them. The argument on the otlier side omits King't Bench.
one material consideration ; namely, that the mortgage to tlie lessor of the v^s/-^
plaintiff was equally with the mortgage to the defendant, before the award ^°* ^' Habris
made by the commissioners, and therefore the cases cited go to shew that Sauni>£r.
the title of the lessor of the plaintiff is also bad, if the construction of the act
contended for on the other side is valid. In 1811 the Inclosure Act was
passed. Jonah Smilhj under whom the defendant claims, was put in pos«
session in 1812 of the allotment in question, as well as of another allotment.
In 1817 the commissioners delivered to him a description of the two allot*
ments, shortly afler which, in 1818, he mortgaged this allotment to the de-
fendant for a term of 500 years. The defendant therefore had then a clear
legal term of 500 years. In 1821, the general act of 1 & 2 Geo. 4, c. 23,
passed. By that act, even supposing that the legal estate was not vested in
Jonah Smith by the local act on the allotment being made, the defendant would
have been entitled to maintain an action of ejectment for this allotment, and
consequently would have been able to defend one. That act was passed
expressly to remedy the inconvenience of the decision come to in the case of
Farrer v. Billing {a). Subsequently, in 1824, the mortgage in fee was made to
the lessor of the plaintiff, and if the award afterwards in 1825 had any effect
at all, it must have affected the prior title of the defendant rather than that
of the lessor of the plaintiff. There were two allotments to Jonah Smiihf and
one only having been mortgaged to the defendant for a term of years,
he would not have been entitled to the possession of the title-deeds, but
merely to a covenant to produce them, of which the subsequent mortgagee
could not have bad notice given him. The case of Goodtitk v. Morgan (6),
is overruled by that of Bailey v. Fermor (c).
ff^. J, Alexander^ in reply. — Had the intention of the legislature been to
make the legal estate vest immediately on the allotments being set out, it
would have been done by express words. The allotments were not in fact
made until tlie award was executed, though in one sense they may be said to
have been made when the commissioners put Jonah Smith in possession in
1812. Farrer v. Billing (a) is an authority to shew that they were not allotted
until the award was executed. The general statute 1 & 2 Geo. 4, c. 23,
affords a strong argument in favour of the lessor of the plaintiff, as the neces«
sity for that enactment shews that previously, the defendant could not main-
tain an ejectment, and therefore had not the legal estate.
Lord Denman, C. J. — In this case the lessor of the plaintiff seeks to re-
cover some property by proving a title under Jonah Smith, which title was
made over to him in 1824. The defendant says he was already previously
entitled under the 51 Geo. 3, c. 25, an act of parliament which directed the
inclosure of certain lands. (His Lordship then read the 4Gth section.)
This act having passed in the year 1811, an allotment was made in 1812 to
Jonah Smith of the land now sought to be recovered, and in 1818 he conveyed
that land to the defendant. Now, according to the terms of that clause, on
the construction of which the whole of the case seems to me to rest, without
admitting of a reference to the general act 1 & 2 Geo* 4, c. 23, it seems to me
(a) 2 B. & A. 171. (6) 1 T. B. 766. (c) 9 Price, 262.
VOL, II. A A
354 TERM REPORTS ik ths KING'S BENCH.
King*t Bench, that Jonah Smith had full power to mortgage this property to the defendant
*^'*^ He therefore proves a title in himself, and at the same time it is shewn that
Doi d, Harbib ^Yiere is none in the plaintiff. There must therefore be judgment for the
Saunmii, defendant.
Pattesok, J. — ^There has been a great deal of discussion which does not
bear upon the case, though it was proper to be introduced, because it would
so bear^ if the construction that Mr. Alexander seeks to put on the 46th clause
of the local act were the true construction. The question turns on that act
alone. The language of Lord Tenterden, in the case of Farrer v. Billing (a),
is, ** The language of the local act upon which that case (Kingsley y. Young)
arose^ was different from that of the act under our present consideration.
The legislature may certainly, by proper words, give the seisin and legal estate
upon the allotment only, and before execution of the award. But we think
the present act does not contain any words proper for that purpose, or indi-
cative of such an intention.'* Now, looking at the 46th section of this local
act, it appears to me to contain proper words for that purpose, because the
words are, " that the several lands and grounds, so to be allotted and
awarded &c., immediately after such allotments and exchanges are made as
aforesaid, shall be, remain, and enure, &c.'' ; and the obvious meaning is^ im-
mediately afler the allotment is in point of fact made. It is contended, that
it must mean when the allotment is made, possession given, and completed
by the award. I think it means when the allotments are in point of fact ori-
ginally made, at which time they shall enure to the person to whom they are
allotted. If the act of parliament had stopped there, it might perhaps have
been argued that it conveyed no legal estate, as it would be merely to re-
main and enure to them, giving them some interest ; but it goes on to say
<' who shall from thenceforth stand and be seised and possessed thereof, to
such and the same uses &c., as the several and respective messuages &c., in
lieu of which such allotments or exchanged houses shall be respectively
made or taken as aforesaid, are now held under &c." I must take it that
Jonah Smith was seised in fee of the olden property, and then it follows, that
immediately afler the allotment, by operation of the 46th section, he became
seised in fee of the allotment. That was made in 1812, and he made the
deed of mortgage to the defendant in 1818. I do not rely on the validity of
that deed under the 1 & 2 Geo, 4, c. 23, because that act did not pass till
1821, but upon the 46th section of the local act. If he had the legal estate
by virtue of that section, then his mortgage did convey the legal estate, and
what happened afterwards, by the passing of the act 1 & 2 Geo, 4, c* 23, was
immaterial.
Williams, J. — I am of the same opinion, that upon the construction of the
46th section of the local act alone, the question absolutely turns and depends.
If^ as is thrown out by Lord Tenterdm (6), it is competent for the legislature
to frame an act of parliament which shall have the effect of vesting at
once the seisin and legal estate, upon the allotment being made ; in my opi-
nion that power has been exercised in framing the section to which reference
is made. So far from the vesting of the legal estate being made to turn on
the completion of the award, undoubtedly that section contemplates that as
(a) 2 B. & A. 178. (6) Ibid.
MICHAELMAS TERM, 1836. 355
to the several lands and grounds that were to be allotted, the parties in whose King*i Bench,
favour the exchange was made, were to stand and be seised to such estates, v^v^
amongst the rest, as the several and respective messuages, &c., in lieu of I>oe d. Ha r bis
which the allotments were made. Now, what was the estate that they had sounder
in old open lands, which the recital says were greatly inconvenient ? These
lands were held in fee simple ; by the inclosure, others were substituted for
them, and in that state of things there was a mortgage to the defendant.
Coleridge, J. — The defendant has a prior title in point of time, and the
only question was, whether Jonah Smith had the power to give him a legal
estate. That depends on the construction of the 46th section of the local
act. All the arguments and cases cited on the part of the plaintiff^ seem
to me equally favourable to the defendant. The words are, that the new
landS| so to be allotted and awarded on the said inclosure^ shall, immediately
after such allotment^ remain and enure to the several persons to whom they
shall be allotted, and be settled to such and the same uses, &c. It is con-
tended on the part of the plaintiff, that this must mean upon the allotment,
when perfected by the award, being executed. Now, before referring to the
cases cited, we must look to the construction of the clauses in this act of
parliament ; and we cannot turn to any section without seeing that the
word <' allotted" is used in a distinct sense to that of <* awarded." We find
also the words <* allotted and awarded, " which goes to shew that *' allotted'*
is to be taken in the popular sense of allotment by the commissioners, in
opposition to the complete sense as perfected by the award. If that be so,
then in 1812, when the commissioners made the allotment, and Jonah Smith
came into possession, at that moment he was seised in fee. Being so seised,
he had good right, in 1818, to make this mortgage to the defendant. The
case of Doe v. Hellard (a) bears as much in favour of the defendant as of the
plaintiff. There must therefore be judgment for the defendant.
Judgment for the defendant.
(a) 9 B. & C. 789.
Cane v. Chapman.
n^HIS was an action on the case, brought against the defendant as clerk to i. in case against
the commissioners for paving and lighting the town of Harwich^ ap- uiVcommUs^-
pointed under a Local Act, 59 G. 3, c. 118. The declaration stated, " that «" «ndcra locai
' act, the declara-
tion slated, that the plaintiff advanced to the commissionrrs a snm of money for the purchase or' an annuity,
and tliftC five of the comniissiouers, by a grant made according to the form of the statute, did by virtue of
the act grant an annuity out of llie rates granted and to arise by virtue of the act, aud that afterwards a
quarterly payment of the annuity became due, and that the commissioners had iu tlieir hands, out of the
rates granted by tiie act, more than sufficient to pay it, and that it became their duty to pay it, but that
they did not:— H«/if, 1st, that a plea, traversing tlie commissioners* duty to pay the quarterly payment,
was bad on special demurrer : — 8d,that it was not cause of gtmtrtd demurrer to the declaration that tlicre
vras no averment that the money was advance to the commiasiooera for the purposes of the act, or that
there was no averment that the commissioners bad sufficient to pay all demands on the rates.
S. The local act enacted, tliat the commissioners might sue and be sued in the name of Uieir clerk, for
or cMc#rMi«g #»jf tki»i tMek ikmit kt domt Jy wirtm •r im fmrwmu rf tkt ««#/ and also by another sec-
tion enacted, that no action should be brought /or Mqr tkim^ dont im punummet of tk$ ««, until fourteeu
days' notice bad been given to the clerk i — HM, thai an action for the non- payment of the annuity was
concerning a thing done in pursuance of the act, and was properly brought against the clerk, as tlie section
authorbiug actions to be brought against the clerk,WBt not to b« construed as limited to acts of malfeasance
or nltfeasance only.
3. Stmikf it Is not necessary that fourteen days* notice should be given of such an action. Per Coturidgt, J.
4. Case for neglect of duty Is tlie proper form of action, as an action of contract is not maintainable
either against the five commiselonen who granted tht auiolty, or the whole body, they not being personally
liable, and the credit having been given to Uie rates. *
A Aie
356 TERM REPORTS in the KING'S BENCH.
King*t Bench, after the passing of the act, the plaintiff advanced to the commissionera a sum
v^v^/ of money, not exceeding in the whole, together with all money then and
Cane theretofore advanced upon mortgage, 7000/. : viz. 1350/. for the purchase of
Chapman. ^^ annuity, to be paid and payable during the natural life of the plaintiff,
and thereupon, by a certain grant then made, according to the form of the
said statute. Jive of the commissionerSf appointed by and in pursuance of the
said act, did, by virtue of the said act, at a certain meeting held pursuant
tliereto, in consideration of the sum of 1350/. advanced and paid to them by
the plaintiff, grant unto the plaintiff, his executors, administrators, and as-
signs, one annuity or yearly sum of 140/. Ss. out of the rates granted and to
arise by virtue of the said act, to be paid to the plaintiff, his executors,
administrators, and assigns, by four equal quarterly payments in every year,
during the natural life of the plaintiff, at or in the Guildhall of Harwich
aforesaid ; and that the first payment thereof should be made upon the 1st
of March then next ensuing. And that after making the said grant, to wit,
on the 1st day of December, in the year of our Lord 1834, a large sum of
money, to wit, the sum of 35/. 2s, for one quarterly payment of the said an-
nuity, became and was due and payable to the plaintiff; whereof the com-
missioners so appointed as aforesaid then had notice. And that before and
at the time when the said last-mentioned quarterly payment became and
was due and payable, the commissioners so appointed as aforesaid bad re-
ceived and then held and retained in their hands, out of the rates granted
and arising by virtue of the said act, divers large sums of money, more than
sufficient to pay and satisfy the said quarterly payment. And that the commis-
sioners so appointed as aforesaid, were then requested, at and in the Guild-
hall of Harwich aforesaid, to pay the said quarterly payment, or cause the
same to be paid to the plaintiff, and it thereupon became the duty of the said
commissioners to pay the said quarterly payment, or cause the same to be
paid to the plaintiff at or in the Guildhall of Harwich aforesaid." A breach
was then stated by the non-payment of the quarterly payment. There were
two other counts for non-payment of the two next quarterly payments.
The defendant pleaded, first, not guilty ; second, that it was not the duty
of the commissioners to pay or cause to be paid to the plaintiff the said
several quarterly payments in the declaration mentioned, in manner and
form &c. ; with a conclusion to the country. To this second plea there was
a special demurrer, setting out for cause of demurrer, that it was double and
multifarious, seeking to put in issue all the facts stated in the declaration,
which precede the assertion of the liability of the commissioners to pay the
instalments of the annuity ; and also, that the defendant thereby traversed
and attempted to put in issue a mere inference of law resulting from the
matters of fact. To this demurrer there was a joinder.
The Local Act provided, (section 5,) that all acts and proceedings relating
to the execution of the act might be done by any five of the commissioners,
except where a greater or less number were specially required. It gave
power to five of the commissioners to borrow money on mortgage for the pur-
poses of the act, upon the credit of the rates. Another section recited, that
persons might be willing to lend money on annuities, on the credit of the
rates, and enacted, <' that it should be lawful for any person to contribute
and pay to the commissioners for the purposes of this act, any sum of money
not exceeding in the whole, together with the money to be advanced upon
MICHAELMAS TERM, 1836. 357
mortgage as aforesaid, the sum of 7000/. for the absolute purchase of one or jCing*t Bench,
more annuities, which annuities sliould be payable and paid by the commis- v^v^i^
sioners, out of the money to arise by or from the said rates." A form of Cave
grant was also given. It also enacted, (section 15,) that the commissioners CHAPHAir.
might sue and be sued ** for or concerning any thing which shall be done by
virtue or in pursuance of this act, in the name of their clerk.'* It also en-
acted, that no action should be commenced against any person " for any
thing done in pursuance of this act," until fourteen days* notice had been
given to the clerk ; limited the time for commencing actions to six months,
and gave usual power to plead the general issue, &c.
Cressxcell, in support of the demurrer.— The second plea is undoubtedly
double and multifarious, and seeks to put in issue a mere question of law,
therefore objections will be taken on the other side to the declaration. It
will be contended, that case is not the right form of action ; and the question
will be, whether or not it is the duty of the commissioners to pay annuities
granted in this manner. Now, the act gives power to the commissioners to
raise money by annuities, to be secured on the rates, and expressly directs
that the annuities shall be paid by the commissioners out of the rates. That
enactment enjoins a distinct duty on the commissioners. The case of The
Mayor of Lyme Regis v. Henley (a), shews, that by accepting the office of com-
missioners, the duty attaches. The judgment of £yrf, B. in Sutton v. John^
stone (6), is applicable to this case ; he says, *' that every breach of a public
duty, working wrong and loss to another, is an injury, and actionable." In
Comyns*s Digest, Action on the Case for Negligence (A 1), it is laid down that
action on the case lies for negligence in a man*s duty, though it be a non-
feasance, as if by the negligence of a servant cattle perish. — [Coleridge, J.
— Would not a mandamus lie in this case ?] — If the rates had not been raised,
it would be necessary to apply for a mandamus to raise the rates, but in this
declaration it is alleged that the commissioners have sufficient in their hands
to pay this annuity, and therefore case is maintainable. This principle is
adopted in Keighley*s case (c), where it is laid down, that if a person is bound
to repair a sea wall, and by his default all persons who hold lands in the
district are charged, each of them may maintain an action on the case against
him. In Schinotti v. Bumsted {d), an action on the case was held to be main-
tainable against the lottery commissioners for not adjudging a prize to a person
intitled to it. Yet that was a case where it might be supposed an application
should have been made for a mandamus. In Lacon v. Hooper (e) case was
brought against the commissioners of customs for not making an order for the
plaintiff to receive a premium to which he was entitled. In Sprosley v. Evans(f)
it was held, that case would lie for non-payment of tolls, although debt was
also maintainable ; and the same point was discussed in the case oiSteinson v.
Heath (g)f though it was not decided. It is^ therefore, no objection that an ac-
tion might be maintained in another form. It is, however, submitted also,
that no action of contract could be maintained for this annuity. The other
objection raised is, that the action ought to be against the commissioners
and not against their clerk; but the 15th section of the act is very ex«
(a) 3 B. & Ad. 77, 5 Bing. 91, 3 M. & (J) 6 T. R. 646.
Payne, 278, 1 Biog. N. R. 2^, 1 Scott, 29. (0 6 T. R 224.
m 1 T. R. 509. (/) 1 Rol. Abr. Action on the Case, K. ^t
(c) 10 Co, Rep. 139. • (g) 3 Lev. 400.
358
TERM REPORTS m the KING'S BENCH.
King's Bench, tensive, and the granting this annuity is clearly concerning a thing done in pur-
Vv^ suance of the act. The commissioners are here sued in their character of
Cane commissionerSi not as individuals, and therefore their clerk is properly
CbaImav. ^^^ *^ nominal defendant.
Oglet contri, — The first question which it is necessary to argue is^ whether
the commissioners, as a body, are personally liable for annuities granted
under the act, and it is submitted that they are not. The act directs that
persons may contribute money for the purchase of annuities, which annuities
shall be payable out of the money to arise from the rates. The form of the
grant, also given in the act and set out in the declaration, granted the annuity
out of the rates. The clause giving the commissioners power to raise money
on mortgage, may also be referred to, as shewing the intention of the legisla-
ture, that the credit was to be given to the rates and not to the commissioners.
The cases of Horsley v. Bell (a) and Eaton v. Bell (6), which are cases where
commissioners were held personally liable, were decided entirely on the
ground that the parties did not give credit to the particular undertaking, but
to the commissioners themselves, and therefore are in favour of this argu-
ment, as here clearly the credit was given to the rates. The accountant has
in fact a certain portion of the rates conveyed to him. If, then, the commis-
sioners as a body are not personally liable, the next point to be considered
is, whether an action could be maintained against the five commissioners who
granted the annuity. The grants as set out in the declaration, states that
five of the commissioners did, by virtue of the act, grant the annuity out of
the rates to arise by virtue of the act. There can then be no difficulty in
framing a declaration in covenant or assumpiitf against the five commissioners
on that grant. Having established those two positions, the questions as to
the action being against the clerk, and as to the form of the action, are dis-
posed of; for if an action of contract may be maintained against thej^vr com-
missioners, it is clear that case against the clerk, who is the representative of
the whole body, cannot. In the case of Everett v. Couch (c), it was held,
that an action could not be maintained against a treasurer as th^ representa-
tive of a body of trustees, for an act done by only five of them, although those
five formed a quorum. The case of Schmotti v. Bumsted(d) was decided
on the particular words of the act then under consideration. But if the
Court should be of opinion that an action is maintainable against the whole
body of commissioners, still the questions, as to the clerk being the defendant,
and as to the form of the action, are not determined by that opinion. It cer-
tainly must have been the intention of the legislature, that in actions brought
against the clerk under section 15, he should have the benefit of the clause
requiring fourteen days' notice to be given, and limiting the time within
which the action must be commenced. And the cases of Umplcbjf v.
M'Lean (e), Waterhouse v. Keen (/), and Doe d. Abdi/ v. Stevens (^), shew
that a clause such as the limitation clause in this act, applies only to some
act of misfeasance or malfeasance. Here there has been a mere omission of
duty, and as the limitation clause must be taken together with, and de-
termines the construction of the fifteenth section, this is therefore not a
case where the clerk may be made defendant. There are also several objec-
(fl) Ambler, 770.
[b) 5 B. & A. 34.
c) 7 Taunt. 1.
[d) 6 T. R, 646.
(c) 1 B. & A. 43.
O) 4 B. & C. 200.
3 B. & Ad. 299«
MICHAELMAS TERM, 1836. - 359
tions to be made to the form of the declaration. In the first place, it is not King*i Bench.
averred that the action was brought within the time limited by the act of par- v^/^
liament, nor that notice was given to the clerk. Neither is it averred that the ^^^'^
money was advanced by the plaintiff for the purposes of the act. On referring Chapman.
to the clause giving the power to raise money on annuities, it appears that there
ought to be such an averment to make either the commissioners or the clerk
liable under the act. It ought also to be averred, that the commissioners had
enough in their hands, not only to pay the demand of the plaintiff, but all the
other demands for money advanced on the rates. The absence of such an aver-
ment is an attempt on the part of the plaintiff to gain a priority over other
claimants. Lastly, as to the plea, it is submitted that it is not bad. It puts in
issue the facts of the case, and the law as applicable to those facts is only an
incidental question. The plea of not guilty only puts in issue the non-payment
of the annuity, and if this plea is not to be allowed, how could it be shewn that
the commissioners are not bound to pay the annuity. Their duty to pay is
one entire point, and the defendant is entitled to traverse that allegation in
the declaration.
Cresswell, in reply. — (The Court having intimated that the plea was clearly
bad.) — As to the action being properly brought against the clerk, it is argued,
first, that the commissioners as a body are not personally liable, because no
credit was given to them, but to the rates \ it is next argued on the contrary,
that the commissioners as a body are not liable, because there is an implied as-
sumpsit by the five commissioners. The first position, that no credit was given
to the commissioners, is right. By the act certain powers are given to the
commissioners^ and any five of them may do the necessary acts. When tliose
five commissioners granted the annuity, they did it in the name of the whole
body, and it cannot be called the grant of the five only. Now what is the object
of the clause, enabling the commissioners to sue and be sued in the name of
their clerk ? One object is to enable a person so to sue the whole body, and were
it not for this clause the plaintiffmight have great difiiculty in bringing his action.
The limitation clause is quite a distinct clause, and is not so extensive in its lan-
guage as the former, which cannot be restricted to acts done merely, but must
extend to non-feasance as well. Moreover this action is concerning a thing
done, namely, the grant of the annuity, by virtue or in pursuance of the act.
The judgment of the Court, in the case oi Everett v. Coach (a), proceeds on the
very ground that there the action could not be maintained against the whole
body of trustees. This action is one that is maintainable against the whole
body of commissioners. It cannot, however, be an action of contract, and
must therefore be in case for the breach of their duty. The declaration suffi-
ciently avows also that the money was advanced for the purposes of the act,
and as to the point of attempting to gain a priority, it might have been shewn
by way of plea, that there were prior claimants. At any rate, both those
objections are grounds of special demurrer only.
Lord Denman, C. J. — The Court has already intimated a clear opinion
that the plea cannot be maintained, because it puts in issue an inference of
law, and no particular fact. There are then two objections substantially
remaining to be considered ; one, as to the nature of the action ; and the
other, as to the party against whom it is brought. The clause of the act of
(a) 7 Taunt. 1.
360 TERM REPORTS in the KING'S BENCH.
King's Bench, parliament giving the power to grant an annuity, and requiring the commis-
^"^^"'^ sioners, in raising the money, to grant the annuity in the form set out in the
'^^ declaration, enacts. (His lordship here recited the clause.)
CHArHAN. In the first place, the question is, whether the grant of the annuity is an
act done within the act of parliament, so as to give the party a right to com-
plain of the clerk^ and to make him defendant. Now, the terms of that clause
are, that the commissioners may sue or be sued " for or concerning any thing
which shall be done by virtue or in pursuance of this act, in the name of
their clerk." If this grant can be brought within those terms, then the clerk
is properly sued. The strongest argument used to shew that it is not a
matter within the clause in question, is grounded on the clause for the limi-
tation of actions, where it is enacted^ that no action shall be commenced
against any person for any thing done in pursuance of that act, until fourteen
days' notice have been given to the clerk. The argument is, that the
clauses must be taken to be correlative, and that, as this is not a case in
which the clerk could be sued by reason of the latter clause, therefore the
clerk ought not to be sued under the former. But it seems to me, that in
the enabling clause there is language which expressly distinguishes it from
the limitation clause. By the latter clause the action to be brought is " for
any thing done in pursuance of this act ;" but by the former, the power to sue
and be sued in the name of the clerk is given **for or concerning any thing
done by virtue or in pursuance of this act." Now, this latter language is
much more comprehensive. And it seems to me, that this grant is an act done
by virtue of the act of parliament, on which the clerk may be sued ; and the
more obviously so, because the charge thereby made on the rates is also under
the act of parliament. 7'he five commissioners cannot be responsible at all, for
they acted for the whole body of commissioners ; and where they so act, it
is in pursuance of the act of parliament, and any action concerning what
they have done is to be brought against the clerk. It seems, therefore, to
me, that here the clerk is the proper person to be made defendant, as the re-
presentative of the commissioners.
The next question is, whether the action is properly brought in case.
Upon that I had at first a good deal of doubt, because the word " grant^^ in
the instrument imports a contract, and whether that was with or without seal,
an action of contract, it appeared to me^ might have been maintained. But
considering that the commissioners are not personally liable for what was
done in execution of a public trust, it seems to me proper that the action
should be brought against them as for a neglect of a public duty^ which they
certainly do neglect when they do not perform their engagement with the
persons who have contributed their money. It seems to me, therefore, that
these two objections are effectually answered, that the action is properly
brought against the clerk, because it is concerning a thing done in pursuance
of the act of parliament ; and also, that the action is properly brought in case^
because the commissioners are not personally liable, but are liable for a neglect
of a public duty.
Patteson, J. — I am of the same opinion. It seems to me, with respect to
the first point ; that this plea is a traverse of a mere inference of law ; and
that it does not put in issue the facts out of which the duty arises. For
whether or not the duty does arise out of the facts, is a mere conclusion of
law.
MICHAELMAS TERM, 1836. 361
As to the question, whether the clerk is the proper defendant, it seems to King*s Bench,
me that he is. This is not an action against the clerk as a real defendant in v^v^/
the action^ nor does the act of parliament cause the clerk to be sued as a real ^^^^
defendant, so as "to make him personally liable, as was decided in the case of Chapman.
Wormwell v. Hailstone (a). The act of parliament says, that the commis-
sioners shall be sued in the name of their clerk ; therefore they are the
real defendants in this action : and it follows of course that there can be no
action brought against them in the name of the clerk, except where they are
liable as a body. Next, are the commissioners as a body liable to any
action ? I should agree, that if a contract were made by five of the com-
missioners, so as to bind them personally, [whether under seal or not, is
immaterial^] then the whole body would not be liable to any action, because
the action must be brought upon that contract, and as five only have made
it, it follows of course that no action would lie against the whole body.
But, inasmuch as I apprehend, that this is not a contract binding personally on
the commissioners who signed it, as they only make a grant under the act of
parliament, out of the rates, by which there is no agreement to pay at all
events, but only to pay out of the rates, therefore those five are the mere in-
struments to make that grant, and as it then becomes the duty of the whole
body of the commissioners to pay the annuity out of those rates, the action
is properly brought against the clerk, provided the words of the section are
sufficient to authorise it ; and it seems to me that tliey are sufficient. I can
clearly see the intention of the legislature that the commissioners should be
sued in the name of their clerk, when any question arises out of the act of
parliament. The words " concerning any thing done," are certainly different
from those in the limitation clause. Now, is this concerning any thing done in
pursuance of the act ? The grant is a thing done in pursuance and by virtue
of the act. Therefore an action brought for the money due to the party to
whom the grant is made, is brought concerning something done under the act
of parliament. The words which are in the limitation clause, " for any
thing done," have certainly always been construed to be limited to some
act done by a party, which he intended should be under the act, but which
may turn out not to be warranted by that act of parliament. They have un-
doubtedly been so confined to acts done, and held not to apply to contracts ;
but I think that the other clause having the words ** concerning any thing,"
shews that this action will lie against the clerk.
Then will case lie ? It follows of course, that if the commissioners as a
body are the persons answerable for the payment of this money, that the
action must be an action upon the case, because they have made no contract.
The contract is clearly not binding on the whole body personally, but if at
all, upon the five only. I do not think it does bind those five, they could
not be sued in an action of assumpsit nor of covenant, because there is no
contract made by them either individually or collectively. An action on the
case, therefore, is the only form in which the commissioners as a body can
be sued, and that form has been followed here, stating their duty as a body,
that they have received the money, and have not applied it to the plaintiff, as
they were bound to do. The case has also been argued as a question of
priority. We cannot enter into that question, it does not appear on the face
of the record that there are any other claims. The plaintiff appearing as the
(a) 6 Bixig. 668, 4 M. & Payne, 612.
362 TERM REPORTS iK thi KING'S BENCH.
King*i Bineh, only creditor, and the commissioners having a sum of money, it is applicable
Vtfv«^ to the payment of this debt' only, as far as appears by this record. There
Cams must therefore be judgment for the plaintiff.
v.
CHAPMAKt
WiLUAHB, J. — I am of the same opinion. The plea is an attempt to put in
issue an inference of law. I cannot at all see any difficulty in pleading in the
way that has been suggested. If the commissioners had any defence, why
should they not state it by way of plea ? If there was a prior mortgage, why
not state that ? but nothing of the kind is suggested or appears. It has been
urged that an application for a mandamus would have been the proper course.
That might have been so if the commissioners had had no funds, but it
stands an undisputed fact that they have funds more than sufficient to pay the
plaintiff, therefore the necessity to grant a mandamus does not exist. Next,
it has been contended that the five commissioners are solely liable. That is
an assumption wholly contradicted by the facts of the case. By the 5 th sec-
tion of the act of parliament, five commissioners represent the whole body ;
and by the terms of the annuity grant they do not personally pledge them-
selves at all, but they grant out of the rates raised by virtue of the act of
parliament. It seems to me, that within the 5th section, the whole body are
liable. Then how is it that they are shewn to be liable ? Why, by virtue of the
allegation in the declaration, that they have funds in hand more than suffi-
cient to pay the amount of the claim of the plaintiff. That decides the point,
that case may be maintained for the breach of duty, arising from their neglect
to pay out of the funds in their hands.
Then ^ to the other point, whether or not the clerk may be sued. The
general language of the 15th section, upon which reliance was placed, and the
words ** for or concerning any thing done in pursuance of this act/' seem to
me sufficiently large to sustain this action against the clerk. It arises by
reason of the grant of the annuity, and that was a thing done in pursuance of
this act.
CoLERiDOE, J. — I am of the same opinion. The argument in the early part
of the case applied mostly to the question^ whether there was any personal
liability in the commissioners. Now, as far as this argument was directed to the
consideration whether any action could be maintained at all, it seems to me
inapplicable. Suppose some action might be brought, it does not follow at
all that the defendant in that action would be personally liable. The dis-
tinction is clear between a judgment being recovered against a nominal
defendant, and the execution resulting from that judgment. That point
was considered in fTormtvell v. Hmlstone (a). That case turned on the
provisions of an act of parliament, and the principle of it seems to me of
importance in the consideration of the two next points ; whether the ac-
tion is properly brought against the commissioners in the name of their
clerk, and whether it is brought in the proper form. Now, let us look at the
circumstances of the case, and see the exact situation of the parties ; the
plaintiff has advanced a sura of money on an instrument purporting to be
made by five commissioners under the provisions of the act of parliament,
whereby they grant him an annuity. Now, if there be any personal
liability at all, it can only be a personal liability in the five, it cannot be in
the whole body of commissioners. Then if Acre is no personal liability in
(a) 6 Biog. 668, 4 M, & Payne, 512.
MICHAELMAS TBRM, 18S6. 363
those five persons, and if they have only aoted as commiMioners, that cir- KingUBtneh.
cumstance will bear on these two questiomu They say, that they have >^v^
granted an annuity out of the rates, <' granted and to arise by virtue of ^^"^
the act." That is the transaction, call it* contract or what you please. Chapmak.
What is that more than an acknowledgment of a receipt of money by them
as commissioners acting by virtue of the act, and an undertaking to set aside
so much of the rates then raised, or to be raised thereafter, for the purpose
of paying this annuity ? I think it would be the height of injustice to say, that
their promising always to set aside oertahi rates to be applied to tlie dis-
charge of this annuity, is to make them personally liable. Now, if they are
not personally liable, let us see whether the commissioners are properly sued
in the name of their clerk. The words of the act of parliament are as large as
possible, and we ought not to restrain their effect. It is highly convenient that
some ostensible person should sue or be sued, for or concerning any thing done
in pursuance of the act. Surely here something has been done by virtue of
the act. There has been a grant of an annuity, is not this therefore an action
brought concerning a thing done in pursuance of the act of parliament ? It
seems to me that it is within both the words and the spirit of the clause.
The next point is, whether or not this is the proper form of action. What
is the substance of the action ? It is not brought to recover a loan of money
to the commissioners, but for this annuity, and the substance of the action
is, that, acting in a public capacity^ they have set aside part of the rates as
applicable to it. It seems to me, therefore, that the form of the action is
right, and that the right party is made defendant.
The only remaining question is, whether the declaration presents objec-
tions which are grounds of general demurrer, as I am clear that no ad-
vantage can be taken of any thing that would not be available on general de-
murrer. The only things suggested are, first, with regard to the want of an
averment of the action not being brought in time, or that notice was given.
That objection was just mentioned, and almost immediately abandoned, and
I think that the clause requiring that, does not extend to this case. Then it is
said, that there is no averment that the money was advanced for the purposes
of the act. If that omission had been assigned on special demurrer, I should
have thought it fatal, and do not know, as at present advised, how the
objection would have been got over. But it seems to me, that now, such
objections only can be taken as are available on general demurrer. It is
stated that these five commissioners did, by vurtue of the act, grant the an-
nuity. Now, by virtue of the act they coidd only grant the annuity in dis-
charge of money so borrowed, I therefore think this objection is not available
upon general demurrer. There is one point more, as to priority of payment.
It is said, that the plaintiff ought not merely to have alleged that the commis-
sioners had money enough in their hands to pay the demand of the plaintiff,
but that he should have also stated all the demands on the rates. I do not think
that necessary ; and I also think that the point could not arise on general de-
murrer. It is alleged in the declaration that they held and retained in their
hands, out of the rates, divers sums of money more than sufficient to pay and
satisfy this quarterly payment, but that they did not pay it. I think that is
sufficient, and therefore, upon all these groundsi the judgnient must be tot
the plaintiff.
364 TERM REPORTS in the KING'S BENCH.
Kin^i Bench, Ogle then asked for leave to amend the plea, and to state what was the
^^T^^^ T^^^ ^*ct, namely^ that the commissioners had not sufficient money in their
^, hands to pay the annuity, but was refused.
CairHAN. Judgment for the plaintiff.
Doe d. James Crosthwaite and another v. Dixon and
another.
November 18(A.
The SOD of one n^HIS was an action of ejectment, tried before Lord Ahingcr^ C. B. at the
^uOT^ad^par. Summer Assizes, 1835, for the county of Cumberland^ when a verdict
tition bj deeds of was fouud for the plaintiff, subject to the opinion of the Court on the foUow-
leese end releese .
with tbe mlienee '"g Case : —
of iheoUierco- The lessor of the plaintiff, James Crosthwaite. claims tlie property as heir
that the son of ^^ parte patcrnd of Peter Crosthwaite deceased ; and the defendants* claim is
the copercener as devisecs of Peter Allason. who was heir-at-law ex parte matcmd of the
who made the , . .
partition had the Said Peter CrosthxDoUe,
^n^Sml,^^ ^^^ ^^^^^ ^P^^^^ ^'^ formerly owner of an estate of which the property
and took noUiing in question forms a part, and upon his death his estate descended to his two
thJt"theiSfori toe ^aug^^ers, Jflwe, the wife of Bichard AUason, and Ann, the wife of Josq)h
deMient Mr fmrtt Crosthwaite, in coparceny. Upon the death of Jane, her estate in the pre-
broken. ^** °**' mises descended to Peter AUason, her son and heir ; and upon the death of
Ann, her estate in the premises descended upon the said Peter Crosthwaite,
her son and heir.
The following pedigree, which it is agreed is correct, shews the relative
position of the different parties, and their title by descent : —
Peter Spencer-pAnn. Richard Crosthwaite-pSarah.
Richard Allason-pTane. Ann-r-Joseph CrostHwaite. John Crosihwaite-pDorothy.
Peter AIlaaoD. Petep<^ro8thwaite. James Crosthwaite.
In 1810, John Nicholson purchased Peter Allason*s share of the property,
and the same was duly conveyed by Peter Allason to John Nicholson by in-
denture of lease and release, dated respectively the 15th and 16th November,
1810. The latter deed was made between Peter Allason of the one part,
and John Nicholson of the other part, and the habendum was to John Nichol-
son, his heirs and assigns.
In 1816, Peter Crosthwaite and John Nicholson made partition of the pro-
perty by indentures of lease and release, dated respectively the 15th and
16th of April, 1816. The latter deed was made between Peter Crosthwaite
of the first part, John Nicholson of the second part, and John Huddleston of
the third part ; by it the whole of the property was released to John Huddle-
Stan, habendum as to one portion, being the premises sought to be recovered,
to the use of Peter Crosthwaite, and, as to the remainder, to the use of John
Nicholson*
Peter Crosthwaite from that time became and was sole seised thereof in
fee, and died so seised m 1819, intestate. Upon his death Peter Allason
entered into the premises in question, claiming to be entitled as heir eX
parte maternd, and continued possessed until the time of his death.
MICHAELMAS TERM, 1836.
366
In 1831, Peter Allason died, having by his will, duly attested to pass real Kin^t Bench,
property, devised his estate and interest in the premises to the defendants.
John Huddleston, the other lessor of the plaintiff, is the relessee to uses
mentioned in the deed of partition.
The question for the Court is, whether James Crosthxpaite, being heir ex
parte paternd of Peter Crosthwaite^ is as such entitled to all or any part of
the premises in question ; or whether the defendants, as devisees of Peter
Allason^ who was heir-at-law of Peter CrosthxDaite, ex parte matemdy are enti-
tled. If James Crosthwaite is entitled, the verdict is to be entered for all, or
such proportion of the property as the Court may direct ; if not, a nonsuit is
to be entered.
Dob
d.
Crosthwaite
and aDother
V.
Dixon
and another.
Wightman^ for James Crosthwaite, — Peter Crosthxpaitet by the deeds of
lease and release with John Nicholson, whereby the partition was made,
became entitled to his share of the estate by purchase, and consequently the
descent ex parte maternd was broken, and James Crosthwaite^ who is heir ex
parte maternd^ is entitled to the land. It is admitted, that if a person seised
ex parte paternd makes a feoffment in fee to the use of himself and his heirs,
the nature of the descent will not be changed. Co, Litt, Id, a ; 2 Rollers
Abr, 780, Uses (D.) 4, 5 ; Abbot v. Barton (a), GodboU v. Freestone {h).
But this partition having been effected by deeds of lease and release, the
case is different, and the nature of the descent will be changed. At any
rate, Peter Crosthwaite must have acquired by purchase a moiety of the part
conveyed to him by the deeds of 1816, to hold in severalty, and that moiety
will therefore descend to his heir ex parte paternd,
W, H, Watson^ contrd, — The rule of law is, that if a person who takes
by descent ex parte maternd^ makes a feoffment in fee to the use of him-
self and his heirs, that it will not have the effect of breaking the descent.
That is laid down in the case of Martin v. Strachan (c). It is also sub-
mitted, that the effect of these deeds of lease and release, whereby the
partition was effected, will not alter the nature of the estate. The only
effect of these deeds will be as to the enjoyment of the estate. In Comyns's
Digest, Parcener, (C 15), it is said, " Upon partition made, the occupation and
descent, which before were in common, shall be several and distinct. But
a coparcener, af^er partition, continues in the same privity of estate as
before, for it does not convey or make any alteration of the estate. So par-
ceners shall be in from the common ancestor as before, for the partition
does not make any degree;" and Saville, page lid, is referred to. It has
never been denied, that if partition is effected by writ, that it will not alter
the descent of the property ; but then it is said, that this having been by
deeds of lease and release, that will make a difference. The cases as to
the effect of partition in the revocation of a will bear on this point. In
Luther v. Kidby (d), it was held, that partition having been effected by deed,
and a fine levied in pursuance thereof, would not have the effect of revoking
a will. Risley v. Battinglass (e), and Swift v. Roberts (/), also decide the
(a) 2 Salk. 590 ; 1 Com. Rep. 160 ; 11
Mod. 181.
(6) 3 Lev. 406.
(e) 5 Term Rep. 107, note; 2 Str. 1179 ;
lWUf.2,66.
(d) Vio. Abr. Dwisi, R. 6, pK 30, and 3
P. Wms. 170, note.
(•) T.Raym.240.
(/) 3 Burr. 1490 ; Amb. 617 ; 1 W.
Bla. 476.
366
TERM REPORTS in «i KINO'S BENCH.
Kin^t B$neh. ^ame point. The case of Luther v. Ktdby is recognised by Lord Eldan in
y^^/^^ the case of Harwood v. Oglandtr (a), and by Lord Kenj/on in GoodtUie ▼.
^B Otway (b)t although in the case of Tickner v. Tickner (c), a different decision
CROfTBWAm 8eem8 to have been come to.
and another
fFighiman, in reply. — After the deeds whereby the partition was efifected,
Peier Crosthwaite held his part in severalty, which before he held in common
with John Nicholton ; he must therefore have acquired it by purchase from
John Niehokon, and therefore it will descend to his heir es parie patemd.
DiZON
and tnolhtr.
Cur.adv.tult, (d)
Lord Dekhak, C. J. afterwards (Nffoember 25th) gave judgment. — In
this case one of two parceners alienated his moiety in fee, whereby the
alienee and the remaining parcener became tenants in common. Afterwards,
by deed of partition between the alienee and the remaining parcener, the
land was divided by metes and bounds, and each of them took a moiety in
severalty. The question is, whether by that deed the parcener took any
thing as purchaser, so as to break the descent ex parte matemd^ and to let in
the heir ex parte patemd on the death of the parcener. It is admitted, that
if the deed of partition had been between the parceners themselves, the
descent would not be broken : but it is said, that inasmuch as one of the
parties to the deed was a stranger in blood, whatever was taken from him
by the parcener must be taken by purchase ; and doubtless this would be so
if any thing was taken from him, but we are of opinion that nothing was
taken by the parcener from the alienee under the deed. The effect of it
was only, that the parcener had by it a divided moiety in severalty, dis-
charged from any right in the alienee, instead of an undivided moiety in
common, but he had the same estate in the land as before. The consequence
is, that a nonsuit must be entered*
Ves. 219, and 8 Vet. 128.
Term Rep. 416, 417 ; 1 Bos. & Ful.
(c) 1 Wils. 308, cited in Panom ▼. jFVe«-
nuin, 3 Atk. 741 ^ Amb. 116.
(d) The case was argued before Lord Dtn'
man, C. J., Pa(«S9n, WiUiatM, and Coleridge,
Js.
The King v. John Marsh.
Kovember 21it.
1. A grand jury H^HIS was a rulc Calling on the prosecutors to shew cause why this
lilt not coDiiit indictment should not be quashed. The indictment was found at the
Dover Sessions on the 16th of February last. The defendant removed
it into this Court by certiorari^ and he was tried and found guilty at the
last Summer Assizes at Maidstone. It appeared on this motion, by the
affidavit of the person who was foreman of the grand jury, that twenty-
eight persons were impanelled and sworn on the grand jury which found
the indictment, and that twenty-five of them sat on the consideration of the
biU, received the evidence, and voted on the bill. By the affidavit of
bad tale'n his trui another pcrson in Court, it appeared there were twenty-eight sworn on the
on it, and been
foond guilty.
3. On a motion to qoaih aa iadletiiieat, the Cotitt replied to lit tea to aa afidatit OMda b| a grand Jorj-
ana at to what paiicd in the grand joiy room.
must not contitt
of more than S3
persons.
S. More Uian
SS having been
sworn in, the
Conrt refused to
quash an indict-
ment found by
them after the
defendant bad
removed it by
eertiorari, and
MICHAELMAS TERM, 1886. 367
grand jury, and by the affidavit of the town clerk, it appeared he had sworn Kin^t Beneh,
in more than twenty-three, though he could not say exactly how many : that wv'^
he swore in all who presented themselves, in order to avoid any suspicion of "^^ ^^^^
partiality, as it was known this indictment would be preferred, and as a Marsb,
good deal of excitement existed in the town on the subject. Thirty-one
persons had been summoned on the grand jury, and the person who sum-
moned them also made an affidavit that more than twenty-three were sworn
in. On granting the rule MMt, the Court said that they could not listen to
that part of the affidavits which mentioned what had occurred in the grand
jury room, as it was a violation of the oath of the grand jurymen to reveal
it (a). It did not appear what was the form of the caption of the indict*
ment.
Tlatt and Adolphits^ shewed cause. — There is no authority for saying that
there may not be more than twenty-tliree persons sworn on a grand jury.
The earliest authority on the subject to be found is in Co. Lit, 126 b, where
it is said, that an indictment must be found by an inquest of twelve or more,
which is not an authority to shew that more than twenty-three grand jurors
would be irregular. In 2 Hale's Pleas of the Crown, 154, is given the form
of the summons under which the grand jury attend, and by that it appears
that the sheriff is directed to summon twenty-four. It will be argued, that
if there are more than twenty-three grand jurymen, twelve may be for the
bill, and twelve against it ; it is submitted, however, that that is immaterial,
and that so long as twelve concur in finding a true bill, it is sufficient. In
2 HaUs Pleas of the Crown, 161, it is said, if there be thirteen or more of
the grand inquest, a presentment by less than twelve ought not to be ; but if
there be twelve assenting, it is a good presentment. In Comyns's Digest, In-
dictment (A)^ it is said, that an indictment is an accusation found by a proper
jury of twelve men. So in 2 Hawkins's Pleas of the Crown, ch. 25, s. 1, it
appears an indictment is to be by the oaths of twelve men. In 4 Blackstone's
Commentaries, 306, it is said, '* to find a true bill there must at least twelve of
the jury agree." Viner's Abridgment, Indictment, H. 9, pi. 5, is to the same
effect ; and all these authorities merely shew that it is necessary that the in-
dictment should be found by twelve at least. The only authority to shew
that no more than twenty-three ought to be sworn in, is what is said by
Lord Mansfield in 2 Sum 1088, and referred to in Bacon's Abridgment,
Juries, A. ; but that opinion seems to rest merely on the ground of incon-
venience. Another ground for discharging this rule is, that this is not the
proper form of application in order to take advantage of the objection, if it
is one, and that it is now too late to move to quash the indictment. In
Viner's Abridgment, Indictment, H. 7, pi. 2, it is intimated that an objection to
some of the grand jurors as being outlaws should be pleaded. In 2 Hawkins's
Pleas of the Crown, ch. 25, s. 26, a strong doubt is expressed that such an
objection cannot be taken afler trial. In the same way this objection ought
to have been pleaded in abatement. In this case the defendant, by removing
the indictment by certiorari, and pleading to it, and taking his trial on it, has
admitted that there is a good indictment in Court. Dr. Sheridan's case (b) may
(a) 31 Howel's State TiiaU, coL 643. (b) See Syka v. Dunbar, 2 Selw. N. P. 1066, 7th ed.
368 TERM REPORTS in thk KING'S BENCH.
King'i Bench, also be referred to, as shewing that such an objection should be taken at the
"^/^ trial. If the objection appears on the caption of the indictment, it is error in
The Kino j^^ . j^* j^ ^^^g ^^^ g^ appear, it is error in fact, and the defendant should
Marsh. bring a writ of error, instead of making the present application.
The Attorney 'General, and Channel, contrd, — The Court will decide the
question as to the limit of the number that can be sworn in on a grand jury
on general principles, with a view to the consequences which would follow
from more than twenty-three being sworn in. The Court will also look to
what has been the universal practice on the subject. — [Lord Denman, C. J.
-*The Court does not doubt but that twenty-three is the proper and limited
number of persons to be sworn on the grand jury ; the swearing in such a
number is matter of practice, distinctly recognised by all the authorities in
the way in which undisputed matters of practice are always recognised,
by universal and unquestioned adoption.] — Then, on the other point,
it is submitted that the Court will quash the indictment for this defect.
It has been stated that the defendant should plead this matter, but this
indictment is in fact null and void, and the defendant ought not to have been
tried at all on it. In 2 Hawkinses Pleas of the Crown, ch. 50, s. 3, it is laid
down as a general principle, that even after judgment, if it is void, advantage
may be taken of the special matter without writ of error. There can be no
doubt but that the indictment would have been void if less than twelve
persons had found it. In the case of The King v. Dickenson (a), the de-
fendant was found guilty, but it afterwards appeared that the witnesses
attended before the grand jury without having been sworn. Bayley, J.
thought the objection came too late after conviction, and therefore sentenced
the defendant, but reserved the point for the opinion of the judges. The
judges recommended that a pardon should be applied for to the Crown,
without deciding upon the validity of the objection. That case apparently
shews, that although there may have been ground of error, yet the Court
would, if possible, relieve a defendant on motion. So here, even though the
defendant may maintain error, still it does not follow that the Court will not
likewise grant him relief on the present motion.
Lord Denman, C. J. — There has been no authority cited to shew that the
Court is bound to quash the indictment in consequence of this mistake. The
mistake may be in the caption of the indictment to which the party pleaded,
and to which he has therefore had an opportunity of objecting. It is possible
that he may not have been aware of the number of grand jurors sworn in ;
but still, if the caption is wrong, error in law would lie. If, on the other
hand, the error does not appear on the caption, the defendant may bring it
forward by error in fact. We do not feel bound to say whether either of
these courses can be adopted in this case. Supposing that there is ground
for arrest of judgment, that is also a proceeding open to him to adopt ; but
in the absence of all authority requiring us to quash the indictment, the party
applying having brought it here by certiorari, and pleaded, and gone to trial,
I think that we are not now called upon to make this rule absolute.
(a) Russ. & Ry. Cr. Cases, 401.
MICHAELMAS TERM, 1836. 369
Patteson, J. — We ought really to have some express authority to shew King^t Bench.
that we can quash an indictment for this cause aAer plea pleaded, and the w^^^^
defendant has taken his trial thereon, and has been found guilty. Whether ^^^^ Kino
he can bring error will depend on the record, which must be inspected before Marsh.
that can be determined.
Williams, J. — We ought not to interfere when a man, who might have
been aware of an objection, has pleaded generally, and has taken advantage
of a trials with the chance of an acquittal,
CoLERiDOE, J. concurred. Rale discharged (a).
(a) See this case again, 1 Will. Wol. & & Payne, 470 ; ScarUiCs case, 12 Co. Rep.
Dav. 150 ; and also 7%# King v. Davis, I Car. 98.
Lord Bolton r. Ottiwell Tomlin, and others, Executors
of John Tomlin.
T
November 9\st,
HIS was an action of assumnsil tried before Parke. B. at the Yorkshire V ^'^ ***''^"**'
Spring Assizes, 1835. 1 he action was for non-payment of rent, and for agreru by parol
not cultivating a farm according to the special terms of the agreement here- Jll^ard touro^*
inaAer mentioned. The defendant pleaded non assumpsit, together with se- some land from
veral special pleas. At the trial it appeared, that the farm in question was fh^.^cw Vel^lSJ"
held by John TomliiCs father, as tenant to Lord Bolton, until Lady-day 1820, meuuoDcdiDsome
and that at the end of the year 1819, it was let to John Tomlin himself, in the if^'^Jc.In'o^?'*
following manner, which was the method usually adopted with Lord Bdton^s <^"p>^<»* <^t « fu-
property. Lord Bolton had printed rules and regulations under which his ^\^xn\\i\ auor-
tenants held. Some alterations in writing were made in one of the copies of "^^ ''*^" »*«°®** *
these rules and regulations, with the consent of John Tomlin. John Tomlin Uie hiriog at tiic
was then called into a room (in his turn with the other tenants), where were r^^?^,^?*"^**
present Mr. Sadler, Lord Bolton*s agent, and Mr. Lvpton Topham his attorney, after a tenancy
The attorney then said, " Mr. Sadler, have you agreed to let this farm to ^^^t*^*" ' entr
Mr. John Tomlin f and Mr. John Tomlin, have you agreed to take this farm •"*! payment of
upon the terms mentioned in these rules and regulations?" Having received ropyofThe'printed
the assent of both parties, the attorney then put his name to a memorandum ^^^» '^^^ ^^^
indorsed at the back of the copy of the rules and regulations. The follow- Sdon?<?, mi^ht
ing is a copy of this memorandum : — ^ "«<* *>J *'»»
16th December, 1819. .^rdttn'order
" Memorandum— JFi7/iam Sadler of IVensley, in the county of York, gen- J^o7^'^to1hc"*^
tleman, as agent for and on the behalf of the Right Honourable Lord Bolton, special terms un.
agreed to let to John Tomlin, of Thornton Steward, in the said county of York, t^^^^^i^rcii
farmer, and the said John Tomlin agreed to take of the same William, Sadler, aiuiough there'
as such agent as aforesaid, all that farm called the Thornton Steward Farm, haJe'iwM^uie
situated within the parish of Thornton Steward aforesaid, and containing by ^nt insumce,
estimation 374 acres and 18 perches, be the same more or less, with the meut for a I'lfi^"'
appurtenances, for the term of one year, and so from year to year until one ''^^^ ^^ "^^ ^
of the said parties shall give to the other due notice to quit, at and under the within a year»
and was Uierrfore
bad by the fourth s«cUon of the Stitote of Frauds.
8. A parol leate for a term not exceeding three years, warraaled by the Mcond Hction of the Statute of
Vrands, may be as special iu its terns as a written one.
VOL. If. B B
370 TERM REPORTS ik the KINO'S BENCH.
Kifig*s Bench. J^Mly rent of 754/., to be paid in equal half-yearly payments ; that is to say,
Wv^ on the 25th day of March, and the 29th day of September^ in each year, #v6«
Ix>Td Bolton jed to the xnthin printed regylations and coniUtums,
ToMUN and " ^^ *^® presence of me, Luptoh Topham."
others.
Amongst the rules and regulations there was one for sowing the land with
clover seed^ under particular circumstances, and for leaving the same un-
broken up for two years. There was another for keeping certain lands
imeaten and free from stock, for fifleen months previous to leaving the farm.
At the time this memorandum was signed, it was also agreed by the parties
that the tenancy was to commence at the following Lady-day, John TomUn
accordingly began to occupy the farm under this arrangement, at Lady'day,
1820, and continued to occupy and pay the rent until his death in June, 1821.
His executors then entered and occupied the farm without any new agree-
ment, and it was during their occupancy that the causes [of action accrued.
During the occupation by the executors, they made application to Lord Bol^
tan*s steward to be allowed to deviate from some of the rules. At the trial,
Lupton Topham was examined, and produced the copy of the rules with his
memorandum indorsed, and stamped with a lease stamp. It was then ob-
jected that the agreement was one which ought to be signed by John Tamlm,
the party to be charged therewith, according to the Statute of Frauds,
29 Car, 2, c. 3, and that the copy of the rules and regulations, with the
memorandum indorsed on it and signed by Lupton Topham, could not be
received in evidence. Parke, B. overruled the objections, and allowed the
rules and memorandum to be read to the jury ; but gave the defendant leave
to move to enter a nonsuit. A verdict was then found for the plaintiff, sub-
ject to a reference to arbitration. A rule having been obtained to enter a
nonsuit according to the leave reserved,
R» Alexander and J. Addison, shewed cause. — One objection made to the
evidence given in this case is, that the agreement between the parties was
not a good demise, as it was not signed by the parties according to the pro-
visions of the Statute of Frauds, 29 Car, 2, c. 8, s. 1» It was, however, a
demise for a less term than three years, and is therefore within the exception
of the second section of that statute. But it may be said, that it could not
be a present demise^ as the term thereby created was not to commence
immediately, but at the following Lady-day, The case of Ryley v. Hicks (a),
however aflbrds an answer to that objection. That case is cited in SelxvynsNisi
Prius (b), where it is also said, " In Inman v. Stamp, B. R. Trin. 55 Geo. 3,
Dampier, J. said, the practice had been with the foregoing case of Ryley v.
Hicks, although he rather inclined to think that the second section of this
statute, taken with the fourth, was confined to leases executed by possession,
on which two thirds of the improved rent was reserved.*' (c) That is cer-
tainly an authority the other way ; but there is a note in fViliiams Saunders
Reports (d) which also seems to warrant the opinion that this was a good
immediate demise, so as to bind Tomlin, It is further contended, on the other
side, that this was merely an agreement for a lease, and not to be performed
(«) 1 Str. 651. {d) Vol. i. p. 650, foot note to tl)e case of
{bS P. 891, 7th sdif. : p. 831, 8th edit Took v, Ghmoekf
\e) See the report of Uiis case, 1 Sttrfc. ISt
MICHAELMAS TERM, 1836.
371
Lord Bolton
V.
Tom.iN and
others.
within a year, and that it wbb therefore bad under the fourth section of the King*8 Bench.
Statute of Frauds, as it was not signed by TomUn^ the party to be charged
therewith. The case of Bracegirdle v. Heald {a) will be relied on, but is dis-
tinguishable, since here there was not merely an agreement for a lease^ but an
actual lease giTiug a present interest^ which was complete when the parties
assented by word of mouth to let and to take the land. The memorandum
signed by Lord BoUotCt attorney, and the copy of the rules and regulations,
were not given in evidence as the agreement between the parties^ but were
merely memorandums for the use of Lord Bolton's attorney, to enable him to
give evidence of the terms of the letting. This case is similar to that of Rex
V. St, Martin'Sf Lace$ter (6), where a witness was allowed to look at a written
entry to refresh his memory, the entry itself not being considered either as a
lease or as an agreement for one. The case of Rex v. The Inhabitants of
Wrangle (c), is also similar ; and as in that case, so also in this, what the
attorney did had not the effect of making the memorandum an agreement
in writing between the parties. But even supposing there to have been an
agreement, which was bad by the Statute of Frauds, still, Tomlin having
entered on the land and occupied it, the terms of the holding are binding
between the parties ; Doe v. BeU (i/), Richardion ▼. Oifford (e). It cannot
therefore be contended, that in this case the defendants hold on those terms
only which necessarily arise between landlord and tenant. It is clear that
the rent has been paid in pursuance of the agreement, and the defendants
have recognised the rules by applying to be allowed to deviate from them.
Cretixotll and fVightman^ contri, — The material question in this case is,
whether there was an absolute lease of the land, or merely an agreement for
a lease ; if the latter, it was within the fourth section of the Statute of
Frauds. And there could not have been a present demise, for no present
interest passed ; Doe v. fFalker (/)• Being therefore merely an agreement
for a lease, the case of Taj/ v. Smyth (g) shews that the tenancy would have
endured for two years, and therefore the agreement, not being to be per-
formed within a year, is within the fourth section of the Statute of Frauds.
The covenants to sow the land with clover-seed, and to leave it unbroken
up for two years, and to keep certain land free from stock for fifleen months,
also shew that this was not an agreement to be performed within a year.
The circumstance that the agreement has been partially fulfilled by the
tenancy having commenced is immaterial; Baydellv* Drummond(h)» The
special terms of the agreement cannot therefore be taken to be those under
which this land was held. And the plaintiff* not having proved such an
agreement as is required by the fourth section of the Statute of Frauds, is
not entitled to recover for any breaches of a contract other than what would
necessarily arise from the relation of landlord and tenant. Bracegirdle v.
Heald (a) is an express authority for the defendants. In Ryley v. Hicks (i),
there was clearly a lease, and not merely an agreement for one, and besides,
the case of Inman v. Stamp (Jc\ is an authority equally good for the defendants.
(a) 1 B. & A. 722.
(b) 2Ad.&B1.210.
(e) 2 Ad. & El. 514.
(d) 6T. R.471.
(e) 1 Ad. U £1. 63.
(/) 5 Barn. & Creti. 11 1 .
(g) Plow. 269—273.
(h) 11 East, 142.
0 1 Str. 661.
k) 1 St%rk. 12,
i
398
372
TERM REPORTS in the KING'S BENCH.
King's Bench. In the cases of Rex v. St. MarMs, Leicester (a), and Rex v. Wrangle (b), it
is clear that the writings were mere memorandums^ and that the witnesses
were entitled to read them to refresh their memories ; but in the present
case, the rules and memorandum were not used for that purpose merely,
but were read to the jury as the agreement between the parties.
Lord Bolton
V.
T0MT.1N and
others.
Cur, adv. vult. (c)
Lord Denman, C. J, afterwards (November 25th) gave judgment. — ^This
was a special action of assumpsit for breach of the terms of a parol lease.
The defendants were executors of the lessee. The facts were, that in the
month o^ December i 1819, the testator's father was tenant of the premises, his
tenancy being to expire the following Lady-day. The plaintiff's attorney,
in the month of December^ proposed at a meeting of the parties to let the
plaintifTs farms, and read from a printed paper the terms of letting. The
testator was present^ and assented to those terms, agreeing to succeed his
father at Lady-day ; but signed no writing. He did then enter, and conti-
nued tenant till his death ; since which the defendants (his executors) have
occupied and paid rent. At the foot of the printed paper of terms, was
written a memorandum, not signed by either party, but by the attorney of
the plaintiff. This memorandum commenced in the following terms: —
" A. B.f as agent of the plaintiff, agreed to let, and C. D. agreed to take,"
and went on to describe the farm, state the rent, and when it was payable ;
that the term was for one year, and so from year to year, until a due notice
to quit should be given. The plaintiff had a verdict, with liberty to the de-
fendant to move for a nonsuit. It is contended on behalf of the plaintiff, that
the testator became tenant at all events on his entry at Lady-day, 1 820^ if
not before ; and that the memorandum might properly be adverted to for
the purpose of shewing the terms of the tenancy, although not to shew any
agreement to become tenant. On the other hand, it is contended that this
was an agreement not to be performed within a year, and so by the fourth
section of the Statute of Frauds required to be in writing and signed ; and
that although a tenancy from year to year may have been created, yet that
the terms of it could be only such as result by law from the mere relation
of landlord and tenant, there being no writing to satisfy the statute. Now,
assuming that what passed in the month of December did not amount to a
demise (see Inman v. Stamp (d) and Edge v. Stafford (e),) and that whilst it
remained an executory agreement, the performance of it could not be en-
forced ; yet it by no means follows, that when an actual demise by parol took
place, which was valid under the second section of the statute, and a tenancy
was actually created by entry and payment of rent, the terms of that tenancy
may not be proved by parol. Leases not exceeding three years have always
been considered as excepted, by the second section, from the operation of
the first ; and it seems absurd to say, that a parol lease shall be good, and
yet that it cannot contain any special stipulations or agreements. No autho-
(a) 2 Ad. & El. 210.
(6) 2Ad.& £1.514.
(c) The case was argued before Lord Den*
man, C.J. PatUMim, Williams, nnd Coleridge,
Js.
(d) 1 Stark. 12.
(e)lCr. &J. 391.
MICHAELMAS TERM, 1836. 373
rity is, or can be cited, to shew that it may not ; on the contrary, it has ]{i„g*g Bench,
always been assumed, that a parol lease warranted by the second section, v^^/-^
may be as special in its terms as a written one, and we are of opinion that Lord Bolton
such is the law. But it is contended, that in this view of the case the memo- rr ^' j
' Tom LIN and
randum could only be used to refresh the memory of a witness ; and per- others,
haps that may be so. We cannot find that it was used substantially in any
other manner ; certainly it was not treated as being in itself a binding instru-
ment ; and whether in fact it was read by the oflicer of the Court, or by the
witness, is immaterial, no objection on that ground having been taken at the
trial. We are therefore of opinion that the verdict is right, and that this rule
to enter a nonsuit must be discharged.
Rule discharged.
The King t;. The Inhabitants of the Parish of
Eastington.
November 2Ut.
JNDICTMENT for non« repair of a road leading from Eastington to Sand- i. a piea to %a
holme, in the East Riding of the county of York. Pica, that within the iT^ffor'^Ji"''
parish of Eastington there now is, and from time whereof 8cc. there hath repair of a road,
been, a certain township called the township of Eastington, wherein there now dbUncUy ^ *****
are and immemorially have been divers inhabitants, and that the said part ^« penow bouad
of the said higfiway, in the said indictment specified, is within the township °2^^pin tiuit
aforesaid ; and that the inhabitants of the said township, from time whereof • "*^ " •" *
&c., have repaired and amended &c. all the common highways within the ship, and that the
said township that would be otherwise repairable by the inhabitants of the ^nhawtantoofuie
, , * , , * ' . , township have
said parish at large, and that the inhabitants of the said parish at large have been used, &r. to
not, during all or any part of the time aforesaid, repaired and amended, and wiullnlt wtkh
have not been used or accustomed to repair or amend, and of right ought oUicrwise wonui
not to repair or amend the common highways within the said township, the'^J^™, ,t '
or any of them ; and that by reason of the premises the inhabitants of '»^«» •»«' ^^^ *>y
the said township ought to have repaired and amended, and still ought to nises Uie iohr°
repair and amend the part of the said highway in the said indictment biiantsofUie
, . A • township ought to
specified, and thereby alleged to be out of repair, when and so often as it rfpair the road,
hath been and shall be necessary ; and that the inhabitants of the said parish l,'veii/*'th*a?Uic
at large ought not to be charged with the repairing and amending the same, road, but for the
Replication, traversing the custom, whereupon issue was joined. At the jJou1d*be*re^"'
trial before Aldcrson, B. at the Yorkshire Spring Assizes, 1 835, a verdict was pairabie by the
found for the defendants. Afterwards a rule was obtained to shew cause '^^ a verdict
why judgment should not be entered for the Crown non obstante veredicto, or h»ving been given
why judgment should not be arrested. onu on such a*
plea, a jodgment
Cresswell, and JR. Alexander, now shewed cause.— Judgment non obstante re- neto cannot be
redicto cannot bje given unless the Court sees clearly that on the whole record g^enfonhe
that the prosecutor ought to have succeeded (a). Now the jury have found not ap^ that
tbepiiri»hi«Uftbl«
to reptir*
(a; 2 Wms, Saund. 319 c. note (c).
374 TERM REPORTS ik ths lUNG'S BENCH.
King't Bench, that the parish it not liable to repair the road, and that the townihip is ; it is
%^v^ impossible therefore to say that on this record the crown can be entitled
The Kino to judgment. The objection to the plea on which is grounded the motion
iDhabitanu of *® arrest the judgment is, that it does not aver that this road, but for the
Eaitimoton. alleged custom, would be repairable by the parish at large. Such an aver-
ment was inserted in the plea in the case of Rex v. EccUsfeid (a), but it
does not appear to be necessary. It is sufficient to aver that the inha-
bitants of the township ought to repair by reason of the custom which is
alleged, and that the inhabitants of the parish ought not. The latter are
primd fade liable to repair, and that fact is alleged by the indictment itself.
In the form of plea given in 2 JFilliams SaunderSt 159 c, n. 10, there is no
averment similar to the one which it is contended ought to have been in-
serted in this plea. Lord Ellenborough also, in giving judgment in the case
of Rex V. Ecclesfieldf makes no allusion to that averment, and the inference
to be drawn from that circumstance may fairly be, that it did not appear
to his mind a material averment.
Starkie, contrd, — It is quite clear that when a parish is indicted for non-
repair of a road^ it is not sufficient to plead that they are not liable, but it
must also be shewn distinctly who is. That has been decided in the cases of
Rex V. Yarnion (6), and Rex v. SL Andrew's, Holborn (c) ; and the principle
to be deduced from those cases is, that if it is not pointed out distinctly
who is liable, the Court will not allow judgment to be given for the de-
fendants. That is not done by this plea for want of the allegation, that,
but for the custom, the parish would have been liable to repair, and such
allegation cannot be supplied from the indictment. The presumption of law
that a parish is liable to repair a highway can only be made against the
parish, but not in its favour. Suppose a case where there are three de-
scriptions of roads in a township, one repairable ratione tenurce, another by
a division of the township, and the third by tlie township at large. In such
a case the parish must succeed on a plea like the present, and yet no liability
would be fixed either on the individual or on the township.
Lord Denman, C. J.-— It is quite clear that the first branch of this rule
cannot be granted. As to the other I was at first much struck with
the argument on the part of the defendants, but I think that it has been
answered. The parish, to get rid of their common law liability, must shew
pointedly and distinctly who are the persons liable to repair. This plea
does not do that, and therefore the finding on it does not affi>rd any legal
defence to the indictment.
Patteson, J. — I think that this objection to a plea in a criminal case is
fatal. In civil proceedings it might perhaps have been a ground for spe-
cial demurrer only.
(a) 1 Barn. & Aid. 348. (c) 1 Mod. 112; 3 Keb. 301; 3 Salk.
{b) 1 Sid. 140 i 1 Keb. 277, 498, 514 ; 183.
8Salk.392.
MICHAELMAS TERM, \SS6. 376
CoLERiDOB, J.— The plea sets up a special defence, but does not apply King^t Binck.
that special defence to the particular case.
The Kino
Williams, J. concurred. lohabiumu of
Rule absolute for arresting the judgment. Eakikoton.
The Kino v. Jowl.
November Blhi
TM^ IGHTMANf on the part of the defendant, applied for a certiorari^ to TheCoortwUi
remove an indictment for obstructing a highway from the Salford ^^tol^^e
Sessions. The place which it was alleged was a highway, and which the an indictment for
defendant had obstructed, had been inclosed and in the possession of the highway.'uiUesi
defendant above thirty years, who had built a brewhouse on it. It was sug- J|™« paftknUr
gested as probable that, ader so long a non-user of the way, several difficult cifi^ a/iikdST
questions of law might arise on the trial of the indictment, and this was sub- |V^ ^° ^^
mitted as sufficient cause for granting the rule. It was also stated that it
would be a great hardship on the defendant^ after the undisputed enjoyment
of the property for such a length of time, if those questions were impro-
perly decided, and that the short delay that would take place by removing
the indictment would be immaterial, as the place had so long not been used
as a high road. Rex v. The Marqm of Downshire (a), was referred to as
shewing the difficult points of law which might arise on the trial of such
an indictment.
Per Curiam (b). — It seems to us that there is no great difficulty in this
case ; it is a mere question of fact whether the place is a highway or not.
Some particular difficulty in point of law must be shewn to be likely to
arise as a ground for granting this motion. We have perhaps been rather
too lax in allowing indictments to be removed into this Court.
Rule refusedi
(a) 1 Har. & Wol. 673. (b) Pattaon, Williams, and CoUridge, Sb.
The Kino v. The Inhabitants of the Parish of Abergele,
November 24tL
^HE Quarter Sessions for the county of Denbigh commenced on the 5th i: a ncogni-
of April last. On the 7th the Court heard a parish appeal against an JJT^^Jwo^tf"***
order of removal, and quashed the order. Notice of an intention to apply kb« inhabttanu of
for a certiorari to remove this order of the justices was given. On the 8d of LSJing*bJ'i^
October, application was made at the chambers of Lord Denman, C. J. for a ^^^ ^ <^^ ^^
certiorari, and he being out of town, his clerk forwarded the application to |!!^^p^,
him. On the 8th, the certiorari was received in town from him. The recoff- *• w>t »afficient,
^ according to the
provision of 5 O,
ft, c. ig, 8. S*
2, A etrtiorari to removt an order of justices applM/fr before, but not ttUumd till after the expiration
of six Mooths after the order was made, is in time.
3. Tb» rTOftasiw Wing lasiaficient, the Court tent tiie writ down again to ba diowed; on a propel
retognisauce being entteed Into;
376 TERM REPORTS in the KING'S BENCH.
King*s Bench, nisance required by 5 Geo. 2, c. 1 9, s. 2, on allowing the ceriiorari» was en-
^^'^^ tered into by two inhabitants of the respondent parish, who were not the
The King parish officers. A rule having been obtained to shew cause why the ceriiorari
Inhabitants of should not be quashed, and the recognisance discharged ;
Aberoble.
J, JerviSf shewed cause. — One objection to this certiorari is, tliat it was not
applied for within the six months afler the order of justices was made, as is
required by the statute 13 Geo. 2, c. 18, s. 5 ; but it is clear that it was
" applied for," which are the words of the statute, on the drd of October^
which was within the six months, and it is immaterial that the certiorari was
not obtained until the 8th. Another objection is, that the statute 5 Geo. 2^
c. 19, s. 2y requires the party prosecuting the certiorari to enter into a recog-
nisance with sureties, to prosecute ; and it is objected that the statute has not
been complied with^ as only two sureties have entered into the recognisance,
but not the party prosecuting. In this case the prosecutor is the respondent
parish in the appeal, and it is submitted that as it would be impossible for
the whole parish to enter into the recognisance, it is therefore sufficient if
two inhabitants enter into it. The case of Rex v. Boughey (a), is rather in fa-
vour of the objection made ; but by a note of the judgment of Lord Kenj/on
in that case, which is in the possession of Mr. Dealtry of the Crown Office, it
appears that what he intimated was, that where a parish was the prosecutor,
it would be sufficient for two inhabitants to enter into the recognisance in
the name of the whole parish, as in the case of an indictment where two inha-
bitants plead in the name of the whole. The invariable practice has been
for two inhabitants, in such cases, to enter into the recognisance.
Humfrey, contrd. — On the first point it is clear that this certiorari was
not obtained within six months afler the order of justices was made. The
order must be considered as made on the 5th of ^pril^ when the sessions
commenced. The more important point, however, is, that the express pro-
visions of the statute 5 Geo. 2, c. 19, s. 2, have not been complied with.
The parish officers ought, in this case, to have entered into the recognisances
as the prosecutors, besides two other persons as sureties. The judgment of
Parke, J . in Rex v. The Justices of Cambridgeshire (A), supports that construc-
tion of the statute.
Lord Denman, C. J. (c). — I think that Lord Kenyan took the correct view
of the construction of the statute of 5 Geo, 2, c. 19, s. 2. The rest of the
Court, however, think differently, and that the act requires two sureties, be-
sides the party prosecuting, to enter into the recognisances. The conse-
quences of another construction seem to me to afford a strong argument that
Lord Kenyan was right. A different construction of the act cannot be com-
plied with, unless all the parish officers enter into the recognisance. As to
the other point, we think that the certiorari was applied for within the six
months required by the 13 Geo. 2, c. 18, s. 5, and that the limitation of six
months applies to the application only. Having been properly applied for,
I think a certiorari may again, under the circumstances, be allowed now, on
(a) 4T. R. 281. (c) CoUridge, J. was silling in the Bail
{b) 3 B. 6( Ad. 887. Court, and LitiUdaU, Jt at CuildhaU.
MICHAELMAS TERM, 1836. 377
proper recognisances being entered into. The rule may be moulded ac- King*s Bench,
cordingly.
The Kino
Pattf.son, J. — The allowance of the certiorari mentioned in the 5 Geo. 2, inhabitants of
c. 1 9, 8. 2, is by the persons to whom the certiorari is directed, and as it has Aberoelk.
been improperly allowed, a sufficient recognisance not having been entered
into, it may go down again to be allowed.
Williams, J. concurred.
The following rule was afterwards drawn up. *' It is ordered, that the
allowance of the writ of certiorari issued in this prosecution, be quashed, and
the recognisances of the defendants discharged. And it is further ordered,
that the return to the said writ of certiorari be enlarged, and the said writ of
certiorari, and the orders returned therewith, sent back to the sessions, in
order that the said writ may be duly allowed after the said defendants shall
have entered into a recognisance, by one of them the said defendants, on be-
half of himself and the other inhabitants prosecuting the said writ of cer^
tiorari, with sufficient sureties, in the sum of 50/., pursuant to the provisions
of the statute in that case made and provided.*'
Cross v. Metcalf.
November 24th,
^HIS action was tried at the last assizes for the county of York, where a a verdict haviug
verdict was taken for the plaintiff, subject to the award of an arbitrator. J^^jJ'jub^Ji.tto
The cause alone was referred. The arbitrator afterwards made the following a reference to ar-
certificate : — " As the arbitrator to whom this cause stands referred, after trJ^^^^*^
hearing all the evidence tendered by both parties thereon, and the arguments that u would be
of counsel, I certify respectfully to the Court, that I am of opinion that it j^^^ce of the cLe
will be agreeable to the justice of the case to allow the plaintiff to amend the to wnend the re-
replication to the last plea, by substituting for the present a replication de ^versed a parti-
injuridy or other replication putting in issue all the allegations in that plea, ^uJ'*" »JJ«g*t*»n»
upon payment of the ordinary costs of the amendment and applications for replication of a
leave to amend, if such an amendment can be ordered to be made in the pre- j'"!'^' ,^® .
, , . . . . . r , Court refused to
sent stage of the cause." The plaintifTs original replication had specially make the amend,
traversed an allegation in the last plea. A rule having been obtained, calling ""^"^
on the defendant to shew cause why the amendment should not be made
according to this certificate of the arbitrator,
jy. H, Watson shewed cause. — The present is quite a novel application.
The judge at the trial would have had no power to amend this replication
as is now required. The acts of 9 Geo, 4, c. 15, and 3 & 4 Will, 4, c. 42,
only give the power to a judge so to amend in cases of variance. Nor
has this Court now the power to make this amendment after trial and
verdict, that power being limited to the time when the pleadings are on
paper. A repleader is never awarded after a material traverse has been
taken (a). The Court cannot therefore act in this case on the principle on
(a) S$M Tidd*s Practice, p. 921, 9th edit*
378
Kiag*t Betuh,
Cross
v.
Mbtcalf.
TERM REPORTS in tbi KIN0*S BENCH.
which repleaders are awarded. The verdict has moreover been taken by
consent, subject to a reference of the cause as it stands, and the arbitrator is
in the position of the judge and jury. The Court has not now the power
to say that the reference shall be of a different issue.
J, AddisoHt eonird. — ^This is not an application to the Court under any sta-
tute, it is submitted that the Court has power, at common law, to make
amendments in any stage of the proceedings. In Tidtfs Practice^ after men-
tioning the statutes of amendments, it is said (a), *' Notwithstanding the ge-
neral rule, which prohibits amendments not authorised by the above statutes,
after the proceedings are entered on record, the Courts, we have seen, have,
in particular instances, permitted the plaintiff* to amend his declaration or re-
plication, and the defendant to amend his plea in cases where there has
been nothing to amend by after issue joined, and after the proceedings have
been entered on record, and even after trial has been had thereon, and the
plaintiff* has been nonsuited, or failed in producing the record.^' There are
several cases where amendments have been made, in as late a stage of the
proceedings as the present. In Rickardson v. MelUih(b)t it was done after
error brought. The same was done after error brought in an action of
trover ; Smith v. Fuller (c). In Rex v. WUks (d), it was done after
the record was made up and sealed. In Tite v. The Bishop of Worcester (e),
an amendment was made in an ejectment after verdict for the plaintiff*. In
Hooper v. Mantel (/), an amendment was allowed after a rule had been ob-
tained for a new trial. So in Tufton v. Ashley (g), an amendment was made
on a qao warranto^ after judgment was entered by disclaimer. So also the
constant practice of the Court is to allow material amendments after demur-
rers. All those cases shew that the Court has the power to do what is now
required. — [Patteson^ J. — There is no instance of altering an issue after ver-
dict.]— In this case there has been a merely nominal verdict, and the trial is
in fact still proceeding before the arbitrator.
Lord Denmak, C. J. — None of the cases cited are similar to the present
It is impossible to grant Uiis rule. By so doing we should place on the re-
cord a totally diff*erent issue from the one which has been joined, and upon
which only the consent to take a verdict was given.
Patteson, J. and Williams, J. concurred.
Rule discharged.
(a) P. 713, 9th edit.
(6) 3 Bing. 334 ; 9 Bing. 125 ^ 11 Moorc,
104: 7B.&C.ei9.
(c) 1 Ld. Raym.116.
(d) 4 Burr. 2527.
e) 1 Ld. Rayro. 94.
/) 13 Price, 695, 736 ; M'CIcK 388.
ig) Cro. Car. 144.
i
MICHAELMAS TERM. 18S6.
379
King*$ Bench.
FowELL and another v. Petre.
November 2Ath,
n^HE defendant was detained at the suit of the plaintiff on the 26th of i. ad affidavit
October^ on a capias issued the same day, on an aiBdavit of debt stating dcfendan^isfn- ^
that he was indebted to the plaintiffs " in the sum of 500/. for principal debtedtothe
monies due on a bill of exchange drawn by the defendant on, &c. ;'' but it saoTof 5oo/?foi^
was not stated what was the amount for which the bill was drawn. A princip«i moniw
duo on a bill of
summons was obtained to discharge the defendant out of custody, on the exchange/* but
ground that the affidavit to hold to bail was defective, which was heard ^^^^^ff"* '^1*^^.^
before Ldttledalef J. at chambers on the 5th of November. On the 14th of thebiUwas
November a rule nisi for the same purpose was obtained in this Court, against ^J7 Au^appiica-
which ^OD to discharge
a defendant for
thb defect was
/F. H, Watson now shewed cause. — A preliminary objection to this rule m«de before a
is, that the defendant did not apply promptly to the Court within the rule of ten'd^aV-ftw thJ
H, T. 2 Will. 4, I. 33(a), this being merely a case of irregularity. In the detainer, and
case of Tucker v. Colegate^b), it was held too late to take such an objection coun nine days
after the time for putting in bail had expired. The case of Sharpe v. John- If *' '■";?*{?' *'**^
* ^ * , , ' the npphcaUon to
sion (c) will be cited on the other side ; but in that case the objection was one Uie court was
which shewed that the affidavit was altogether void, and not irregular ™***«^o^*^«-
merely. As to the objection to the affidavit, that it ought to have specified
the sum for which the bill was drawn^ the forms given in Tidd's Practice do
not contain that statement (J). There are also two cases in the Court of
Exchequer y Hanley v. Morgan (e)^ and Letois v. Gonipertz{f), from which it
would appear that it was not necessary to state the amount for which a bill
is drawn ; but the judges afterwards came to a different resolution in the
case of Brooke v. Coleman {g). The cases of fVestmacott v. Cooke {h)^ and
Slolinetix v. Dorman (t), are also to the same effect ; but then it appears that
the ground of all those decisions was, that in those cases, from the amount of
the bill not being stated, it might appear that part of the debt was due for
interest, for which the defendants could not have been arrested. Here it is
expressly stated that the sum is due for principal monies due on a bill of
exchange.
^(^gl^!/t contri, — This case was before LUtledaU, J. on the 5th of November^
which was undoubtedly a sufficiently early application, if this case is to
be governed by the rule of H, T. 2 Will, 4. But this being the case of a
prisoner, is not within that rule. An application to discharge a de-
fendant for a defect in the affidavit to hold to bail, may be madie at any
(a) 1 Dowh p. C. 187.
(fr) 2 Cromp. & Jerv. 489 j 1 Dowl.P. C.
574 ; 2 Tyr. 496 \ see alio Fynn y. Kemp, 3
Dowl. P. C. e>20 ; 4 Tyr. 990; and firliy v.
iiaWet, 2 Dowl. P.C.708.
(e) 1 Hodges, 204 ; 4 Dowl. P. C. 324 ;
2 Hing. N. R. 246; 2 ScoU, 407.
(d) This was the case in the older edi-
tions, but in the later the amount is stated.
(0 1 Dowl. P. C. 322 ; 2 Cromp. & Jer.
331.
(/) 1 Dowl.P. C. 319 J 2 Cromp. & 3tu
352 ; 2 Tyr. 317.
{g) 2 Dowl. P. C. 7; 1 Cromp. & Mees.
621; 3 Tyr. 593.
(fc) 2 Dowl. P. C. 619.
(t) 3 Dowl. P. C. 662 ; see also Rackett$
V. Gye, 1 Har. & Wol. 198 ; 3 Dowl. P. C.
554 ; White y. Sowerhy, 1 Har. & Wol. 213 ;
3 Dowl. P. C. 584 ; and Drakt v. Harding,
1 Har. & WoL364) 4 Dowl. P. C. 34.
380 TERM REPORTS in the KING'S BENCH.
Kiug*s Bench, time(tf). On the other point, the cases of Brooke v. Coieman, WestmacoU
v^*v^^ V. Cooke, and Molineux v. Dorman, are express authorities to shew that
FowiLL ji^jg affidavit is not cood.
and another °
PuTiiK. Lord Denman, C. J (6). — If the application is not out of time this rule
inust be made absolute ; the affidavit is clearly bad. Parties must not take
on themselves to vary these expressions in the forms regularly adopted.
1 do not know what is intended to be meant by the term '* principal
monies (c)." We think it better however to speak to my brother lAltiedale
as to the point of the application being within time, and learn what occurred
before him.
Ctir. adv, vult.
Lord Denman, C. J. (the next day). — We have spoken to my broUier
LittUdalct and we are now of opinion that the application was made too late.
Rule discharged.
(a) See Roche v. Johmon, 4 Dowl. P. C. (6) Patteson and Williams, Js. were also
405 ; 1 IVr. & Gr. 43 ; Primrose v, Baddeley, Iq Court; Coleridge, J. was ia tlie Bail Court,
2 Dowl. P. C. 350 ; 2 Cromp. & Mces. 468 ; and LittUdaU, J. at CmldhalL
4 Tyr. 370 -, Foote v. Dich, 1 Har. & Wol. (c) See the case of Robins v. Grant, 1 WilL
207. Wol. & Dav., Bail Court, T. T. 1837.
Merceron V. Merceron.
November lUh,
BoTdbch^'^eT" T^HE defendant, who was very much affected with paralysis, was arrested
drfendaot out of in January last, and still continued in custody. By the bill of par-
an'uT'iute of* *" ticulars delivered, it appeared that every item of the plaintiff's demand was
health, and barred by the Statute of Limitations, which the defendant had pleaded, and
Uiough it ^ 1 • i_ • * • 1
appears by Uie ^ ^^ whlch ISSUC Was jomcd.
plaintiflT's par-
that the acUon b G. Price movcd in the Bail Court, on the authority of the cases of Summer
?utl*^*f Liilitaf*' ^* ^^^^^(sO* ^^ IVtghtxcick V. Bankes(e), to discharge the defendant out of
tioua. custo<ly on entering a common appearance. He argued from those cases,
that where a defendant can shew a reasonable probability of obtaining a ver-
dict, as in this case, the Court will grant this rule, especially if he also be in
an ill state of health.
LiTTLEDALE, J. — The Courts have not latterly been accustomed to proceed
on such grounds in discharging a defendant out of custody. You had better
make your application to the full Court.
G. Price afterwards renewed his motion in the full Court.
Cur* adv. vuU.
Lord Denman, C. J., on a subsequent day. — We have looked into the
(a) 1 II. Black. 30l. (e) Forrest, £x. Rep. 153.
MICHAELMAS TERM, 1836. 381
cases cited, and doubt whether those decisions would now be supported ; Kitig*s Bench,
but, at all events, we think them inapplicable on the present occasion. The v-nrw
rule therefore must be refused. Mp-nrERON
Patteson, Williams, and Coleridge, Js. concurred.
Rule refused.
LiLLiE V. Price.
Kovemher 6(/t.
A CTION for a written libel. P/ea, the general issue, tried before Lord in an aciiou of
Denman, C. J. at the sittings for Westminzter after last term. Verdict ^^lililiaTMur:--
for the defendant. The libel complained of was contained in a letter written //#«, that the de-
by the defendant to a Mrs. Crawy whose husband had been a client of the p',^'uded*by*the
defendant, and relating; to matter about which the defendant had been em- ™** of ''• t. 4
ployed as Mr. Crow's attorney. His lordship, upon the letter being read, MruiDgupa/a
and these facts proved, stopped the case, and told the jury, that in his opi- «!«»«»<» *ti»>e
nion the letter was a confidential communication from the defendant as an mattpr complained
attorney to his client. ® J ^", ^;« »"!y«*^'
•^ ofaprivtleKed
comii;untcaUoD.
Sir W, W, Follett now moved for a rule to set aside the verdict and to
have a new trial, on the ground of misdirection. — The plea being only the
general issue, the learned judge was incorrect in desiring the jury to find a
verdict for the defendant on the ground that this letter was a privileged
communication. A defendant cannot, since the new rules of H. T. 4 fTill, 4,
r. 4, avail himself of such a defence, unless he has specially pleaded it. The
object of those rules was to prevent any defence from being offered at the
trial, of which the plaintiff has not been previously apprised by the pleadings,
and that reason applies as strongly to exclude this defence as any that can
be suggested. In Smith v. T/iomas (a) the defendant pleaded, that the words
spoken were a privileged communication, and the Court there did not con-
sider that such plea amounted to the general issue ; arguing, therefore, e con-
TcrsOf it was necessary in this case that such a defence should be specially
pleaded. So in the case of Barnctt v. Glossop {b), it is laid down that
the general issue is now reduced to a mere denial of matter of fact, and
cannot be considered as involving matters of law as well as of fact ; and
that all matters in confession and avoidance must be specially pleaded.
In trover, the question which is put in issue by the plea of not guilty, is,
merely whether there has been a conversion in fact, not whether that con-
version has been wrongful or not ; wherever the defendant intends to insist
that the conversion was lawful, such defence must be specially pleaded ;
Siancliffe v. Hardrvich (c). Apply the principle of that case here ; sending
the letter in question is prnnd/acic wrongful ; if it is intended to be justified,
the circumstances of justification should be pleaded specially. There is
another class of cases which have an analogy with the present — those in
which it is intended to take advantage of the Statute of Frauds. There the
general issue says that the defendant did not contract^ and the plaintiff cannot
prove that he did — cannot make out his case without producing the paper
containing the agreement ; still in all these cases it has been held that the
(a) 1 Hodges, 353 ; 2 Biog. N. C. 372. (e) 1 Gale, 127 ; 2 C. M. & R. 1 ; 3 Dowl.
(6) 1 Hodges, 94 ; 1 Biog. N. C. 633. P. C. 762.
382 TERM REPORTS i» the KING'S BENCH.
King*t Bench, defendant cannot avail himself of the non-compliance by the plaintiff with
>^/^ the statute, without specially pleading it. The object of the new rules will
LiLLiE certainly not be effected, if in such cases as these, even where the defence
Price. ^^^^ amount to the general issue, it is not held necessary to plead it. The
plaintiff will be ^s much liable to a surprise since the rules as he was before.
Cur. adV' vult.
Lord Denmak, C. J. at a subsequent day, delivered the judgment of the
Court. — In this case the plaintiff complained of certain expressions contained
in a letter written by the defendant. The defence offered was, tliat these
expressions being employed by the defendant in his character of attorney,
were a privileged communication ; and the question was, whether this ought
to have been pleaded specially, which it was not. We are all of opinion,
after consultation with the other judges, that this defence does not require to
be pleaded specially. It goes to the very root of the action ; it shews the
party not guilty of malice, and consequently it is open to him without having
pleaded it.
Rule refused.
Jones, Gent, one &c. v. Reade.
"Novembwr 6ih,
Debt on an at- TJ^I^T on an attorney's bill. Picas, nunquam indebitatus^ except as to part,
toruey'B bill for sct-off, and moncy paid into Court, which was taken out by the plaintiff.
conlTa^ng a*8au At the trial bcforc Faughan, J. at the last Assizes for Chester^ the plaintiff
at law. Pieas, provcd his retainer, and the amount of his bill, for business done in con-
uhu, a setoff, ducting a law suit. The defence set up was, that the plamtiff had agreed to
rntoc^urt-^** do it for the " money out of pocket." On behalf of the plaintiff it was
HM» that the de- Contended that this defence was inadmissible under the existing record.
'reduded*b°the "^^^ learned judge however admitted it, and a verdict was found for the
rule of H, T. 4 defendant, which
W, 4, r. 3, from
giving in evidence
a contract tiiat the J, Jercis, by permission of the learned judge, now moved to set aside, and
bTdonefor^'^the ^^ enter a verdict for the plaintiff for the amount of his taxed costs, less the
™®n«y jutof payments made by the defendant. The defendant could not avail himself of
this defence under the present state of the record ; since the new rules it
should be specially pleaded. The payment of money into Court also admits
the character of attorney, in which the plaintiff sues ; and tliat being so, it
admits his right to fees in that character. He ought not, therefore, to have
been allowed to dispute these facts at the trial. Edmunds v. Harris (a)
decided, that under a plea of nunquam indebUaius the defendant could not
give evidence that the goods were sold on a credit not yet expired. — [Lord
Denman, C. J.— That case has been overruled (6).] — [Palteson^ J.— The
payment admits that business has been done, but it does not admit the terms
on which it has been done.] — It admits the contract, and therefore admits
the character in which the plaintiff made that contract, and its terms.
pocket."
(a) 2 A. & E. 414. cited; also Broakefitld T. Swnih^ 1 Mee. &
(6) See Cottsitit v. Voddan, 1 Gale, 305 ; Welt. 64f .
3 C. M. & R. 547, an4 the other cases thspe
MICHAELMAS TERM, 1836. 383
Lord Demmam, C. J.— The pleadings say that the defendant is not in- King*t Bench,
debted except to a certain amount ; they admit a contract, leaving the terms v#n^^
of that contract to be ascertained by evidence. '^°*'"
Keade.
Pattesok, J. — The fallacy seems to be in assuming that on a common
indebitatus account, the undertaking must have been to pay at an attorney's
rate of charging.
Williams, J. and Coleridoe, J. concurred.
Rule refused.
Gilbert and another v. Dale.
November Bth.
/ASSUMPSIT, The declaration stated that the defendant was the keeper in ««i»v*^
of a booking-office for the booking, receiving, and taking care of boxes oran*officc'fo?**'
and parcels, in order that the same might be forwarded to the several persons tiie bookiag, re.
to whom the same might be respectively directed ; and that the plaintiff, at foril^^i^ of
the request &c., delivered a certain box to the defendant, that it might be p«rceu.whoUiiot
forwarded to Thomas Jeffries^ Esq., Cott Moor, near Pcmhridge, in South iom of a'parcei
Wales^ and that the defendant undertook to take care of the box in order »j«"j|«'«<* ^ h»»n
that it might be forwarded to the person to whotn it was addressed, but after- Mmg/arwardtd, it
wards so negligently, &c. conducted himself that it was lost. First plea, non nu^\ltnTmM
assumpsit; second, that the box was not lost through any negligence or /am case agaiutt
improper conduct of the defendants. Upon which pleas issue was joined. nlJ^JiJ^v'i^ofuie
At the trial before Lord Denman, C. J. at the sittings at Westminster afler parcel at Uie place
last term, it appeared that the defendant is the proprietor of the Gloucester J^^^ evid^e
Coffee-house, and keeper of the booking-ofBce there: that a box, addressed must be given to
to a customer of the plaintiffs, was delivered at the defendant's ofHce 5 th delivery of the
ner.
June, 1833, and a receipt for it given by the defendant's clerk. That no parcel to a car-
directions were given by the plaintiffs ^s to the particular conveyance by
which the box was to be sent, and that the box never arrived ; upon which
the counsel for the defendant submitted that there was no evidence to shew
that the loss had arisen from negligence of the defendant. The learned
Lord Chief Justice being of that opinion, accordingly directed a nonsuit.
Piatt now moved for a rule nisi to set aside the nonsuit and for a new trial.
— ^There was sufficient evidence to go to the jury of neglect by the bailee.
In Griffiths v. Lee {a), Hullock, B. held that circumstances precisely similar
to the present were sufficient to raise a primd facie case against the defend-
ant. The effect of the evidence is for the jury to decide on Aston v. Hea^
ven (6). Here there was evidence to raise a presumption that the bailee had
not discharged his duty. The plaintiff cannot be expected, nor indeed has it
in his power, to prove a non- delivery by the defendant to the carrier better
than he has done ; all that he can know is, that he lefl the box at the
defendant's office, and the consignee was called to shew that he never re-
ceived it. The burthen of proof then lay upon the defendant, and it would
have been easy for him to discharge himself, if the box ever had been deli-
vered, by calling some one cognisant of the fact ; whereas there is no kind of
(0) 1 Car. & Payne, UO, (6) 2 E»p. 533.
384 TERM REPORTS in the KING'S BENCH.
King*t Bench, liinit to the evidence which the plaintiff must have called if he is to be put
to prove a negative.
GiLBF.RT
(,^ Patteson, J.— I think that the nonsuit was right ; what is in evidence in this
Dale. case to prove negligence on the part of the defendant? Look at what the
contract is ; the defendant is not a carrier, he is the keeper of a booking-
office, and his contract with the plaintiff is to take care of goods to be for-
warded by coach to their destination ; his contract is to deliver them to
some carrier for the purpose of their being conveyed. It is necessary,
therefore, in order to prove a breach of contract, either to shew by direct
evidence that the goods were actually taken away or lost out of the office,
or some fact from which it might be implied that the defendant did not
deliver them to a carrier to be conveyed; but was there such evidence
here ? All that was proved was, that they did not arrive at their destination.
The contract of a carrier is to deliver to the consignee, and therefore in the
case of Griffiths v. Lee (a), there was sufficient evidence of negligence ; but
that is not so as regards the keeper of a booking-office, because his contract
is to deliver to the carrier only. I think, therefore, that the nonsuit was
right.
Williams, J. — I am of the same opinion. This is not like the ordinary
case to deliver to the consignee. What was the undertaking by the defend-
ant? Not himself to deliver the goods to the consignee in IFales, but to
deliver to another, which other was to convey, and deliver them there. It is
uncertain whether the loss took place in the hands of the original party, the
defendant, or whether he had got rid of his obligation by delivery to a
carrier. It seems to me there is nothing to fix the defendant.
Coleridge, J. — I am of the same opinion. We are not laying down any new
principle, but merely applying the principle which already exists with respect
to carriers. The law presumes that they perform their duty, which is, to
deliver at a particular place. In order to raise the inference of negligence
against them, the plaintiff must produce some evidence to shew a non-deli-
very there. The burden is then thrown on the carrier to discharge himself.
Apply that rule to the present case. The defendant has undertaken to
deliver to a carrier, not to the consignee. The plaintiff, therefore, must give
some evidence of non-delivery to the carrier ; he attempts to do that by
shewing a non-delivery to the consignee, which is not what was undertaken
to be done. Suppose a case where there are two or three carriers, one
undertaking to convey to York, another to Newcastle, and another to Edin-
burgh, would it be enough, in order to charge the first, to shew that the
goods did not arrive at Edinburgh f Because that is what the plaintiff has
done in this case.
Lord Denman, C. J.— The duty of the defendant was to forward, and not
to deliver to the consignee; that clearly was the contract between the
parties. On the trial it was said that you might as well attempt to charge
the porter, whose duty was to take sc parcel to the shipping-office, for the
(a) 1 Car. & Payne, UO.
MICHAELMAS TERM, 1836. 385
purpose of being conveyed to India, upon proof that Jt had not arrived at King*s Btneh.
Calcutta.
Rule refused. Gilbert
and another
Dale.
The King v. The Trustees of the Norwich and Watton
Turnpike Road.
November 9 th.
n^HE defendants are the trustees under a local public act for altering, i. where a jury
&c. the road between Norwich and PTatton, in Norfolk^ whereby •"j^uleGntra!
they arc empowered to use certain hereditaments specified in the schedule, Turnpike Act, s
on making satisfaction to the owner. Not agreeing with the parties in- ^'J'^^ l^u^o?
terested in some of the hereditaments specified, they proceeded under the several in-
the General Turnpike Act, 3 G, 4, c. 126, under which they were also J^Tc. m^ct^c-
trustees. The 85tli section of that act empowers trustees of roads in *y» *« **»»i ^f^^^
such cases, after thirty days' notice to the parties, to impanel a jury to the ^^t^nWw^n
inquire into and assess the value of the premises in question, damages ••*"' specify tiie
'* 1 * o gQm jyg iQ each
done, &c., and directs the trustees thereupon to order the money so as- mpectiveij.
sessed to be paid to the owners, according to the verdict of such jury ; and ^^^ ^ the3i^'
enacts, that " such verdict or inquisition, and judgment, order, and de- suntiai nnu final
termination thereon should be final, binding, and conclusive to all intents, l!Ji^,^^^|*cJ^ot
&c." The premises in question are leasehold, and two-thirds of the ^ altered by uio
interest therein belonged to Elizabeth Strickland, and the remaining one- tcJ'au/r*^.
third was held by Henry Eiheridge Ely the, Thomas Thurlow IVisemanf and r«« net lo remove
Henry Gridbj/, in trust for Thomas fVUHam Rogerson. Due notice was sent fore their onier'^
to each of these individuals. A jury was impanelled, and the oath ad- *»** ****" "»*^**
. . , , . , ^ , "^ ^ . S. SemUs. that
ministered to them was " to mquire, ascertain, and assess the sum or sums the inquisition
of money to be paid by the trustees of the road, to E. 5., T. W. /?., H. E. JB., •»»«"'** »etout the
J r J .11 uotices given by
S, T, W., and H, G., some or one of them respectively, as the value, recom- the iru»tee«.
pence, or satisfaction of and for their respective estates, rights, and interests" to*pfttceedhwr*^
The jury by their inquisition found one gross sum, 83/., as the value of the under 3G.4.
interest of all the parties in the premises to be paid to them, *' according to ^JJ^'b ITotuken
their respective proportions therein,'* without at all specifying what those •w«y i>y « O' ^
proportions were. The inquisition set out the oath of the jury. It did not ^'
refer in any way to the notices which had been given.
Austin, in Michaelmas Term, 1835, obtained a rule, calling upon the de-
fendants to shew cause why a certiorari should not issue to remove the in-
quisition and also the several notices into this Court, that they might be
quashed, on the grounds that the notices of the trustees to the parties in-
terested were not set out in the inquisition ; and that the inquisition ought
to have determined the proportion of the money due to the parties respec-
tively.
Kelly and Palmer now shewed cause. — There is nothing in the act which
calls on the jury, or any other party, to recite the notices ; it is no part of
their duty to find whether the notices were delivered or not, it was not their
duty to inquire ; they had only to look to the value of the property ; they
had no means of knowing whether they were delivered or not. It might be
necessary to recite them in the judgment, that is, in the final order of the
VOL. ii« c c
386
TERM REPORTS in the KING'S BENCH.
and Watton
Turnpike
Road.
Khig*s Bench, trustees. But as yet there has been no judgment ; the inquisition was not a final
v^/^/ judgment, it was a mere nulhty, until confirmed by the order of the trustees.
The Kino Xhe distinction between this case and The King v. Bagshaw(a) is, that there
The Trustees of ^^^ instrument was final and binding upon the parties ; here it is merely inter-
the Norwich locutory, and if there is an error, it may be amended when the order is made
up. It would be subjecting tlie trustees to great vexation, if at any period
a portion of the proceedings, which cannot be enforced against the party,
could be made the subject of an application to this Court. Besides, in Rex
v. Bagshaw (a), it appeared that no notice had been given ; here there is
merely an omission to recite it, and the proceedings in fact have all been
perfectly regular. The principle regulating the objections to proceedings by
magistrates is analogous ; in such case it is only on the instrument which
finally binds or affects the property or liberty of the subject, that the magis-
trates* authority need to appear. No doubt, in all substantial matters, the
inquisition must not be varied by the order, but in matters of form like these
it may. — [^Coleridge, J. — The jury have here found one gross sum ; how are
you to ascertain what are the respective sums to be paid to each of the par*
ties ?] — The only question to be inquired of by the jury was, the value of
certain leasehold property, and that they have found ; the process was to
inquire, not what was the interest of the parties, but what was the value
of the property, and that they have found.
Lastly, no certiorari can be had in this case. This was a proceeding under
the 3 G. 4, c. 126 (6), and that act, which directs the forms of proceedings,
tice having been ffiven as aforesaid, and of
such recognisance naving been entered into in
manner before directed, shall hear and finally
determine the causes and matters of such ap-
peal in a summary way, and award such costs
to the parties appealing or appealed against,
as the said justices shall think proper to be
levied and recovered, as hereinbefore directed,
and the determination of such Quarter Ses-
sions shall be final and conclusive to all tii-
tentt and purposes, and ho proceeding to be hed
or taken in pursuance of this act thall be
quashed or vacated far want of form, «r re-
moved by certiorari or any other writ oi pro-
cess whatever, into any of bis Majesty's Courts
of Record at Westminster, anv law or statute
to the contrary notwithstanding : Provided
always, that in case there shall not be time to
give such notice, and enter into recognisances
as aforesaid, before the next sessions to be
holden after the conviction of the appellant,
then and in every such case such appeal may
be made to the next following sessions, amd
shall be there heard and determined,"
The 86th section of the 4 G. 4, c. 95, re-
cites the 145th section of the 3 O. 4, e. 136,
and repeals it. The 87th section of the 4 C 4,
c. 95, enacts, " Provided always, and be it
further enacted, that if any person shall think
himself or herself aggrieved by any or^,
judgment, or determination made, or by any
matter or thing done by any justice or justices
of the peace, or by any tmstees or commis-
sioners of any turnpike road, in piirtiMtics of
this act or the said recited act, or any locml act
for making, repairing, or maintaining any
turnpike road, (except where the order, Jmdg'
tnent, or determination of any lu^ juMtic$ or
(a) 7 T. R. 363.
h) Section 145 of 3 G. 4, c. 126, enacts,
*' tnat if any person shall think himself or
herself aggrieved by any thing done by any
justice or justices of the peace, in pursuance
of this act, except under the particular cir-
cumstances hcremafter mentioned, and for
which no particular method of relief hath
been already appointed, such person, in case
the penalty or forfeiture shall exceed the sum
of 40i., where the appeal is to be against a
conviction for a penalty or forfeiture, may ap-
peal to the justices of the peace at the next
General or Quarter Sessions of the Peace to
be held for the limit wherein the cause of such
complaint shall arise, such appellant first giv-
ing or causing to be given to such justice, by
whose act or acts such person shall think him-
self or herself aggrieved, notice in writing of
his or her intention to bring such appeal, and
of the matter thereof, within six days after the
cause of such complaint arose, and within
four days after such notice entering into re-
cognizances before some justice of the peace,
with two sufficient sureties conditioned to try
such appeal at, and abide the order of and
pay such costs as shall be awarded by the
justices at such Quarter Sessions, and also
to pay the penalty or forfeiture in case the
conviction should be affirmed ; and each and
every justice of the peace having received no-
tice of such appeal as aforesaid, shall return
all proceedings whatever had before him re-
spectively touching the matter of such appeal,
to the said justices at their General Quarter
Sessions aforesaid, on pain of forfeiting 50/.
for every such neglect) and the said justices
tt such sessions, upon due proof of such no-
MICHAELMAS TERM, 1836.
387
and Watton
Turnpike
ROAP.
says, that they shall be final upon the parties. — \_Coleridget J. — Section 145 King*tBenck»
in that act, which takes away the certiorari^ is repealed by s. 86 in 4 G. 4, v^s/^
c. 95.] — That is true, but by sect. 87 of that act, the certiorari is also taken "^^^ ^^^^
away ; the same section also gives an appeal, and is quite clear that the le- jhe Trustees of
gislature intended, where there was an appeal, that there should not be a cer- the Norwich
iiorari, — [Coleridge, J. — How do you get out of the exception in that sec-
tion ?] — That does not apply to these proceedings^ which were under 3 G. 4,
the exception in section 87, 4 G. 4, is only as to matters under that act^ and
as to matters thereby declared to be final, it therefore cannot apply to pro-
ceedings under another act.
Biggs Andrews^ and Austin^ in support of the rule. — The two acts 3 G. 4
and 4 G, 4, are to be taken together, and for purposes of interpretation con-
sidered as one act. Therefore the exception in s. 87 of 4 G. 4, c. 126, which
expressly excepts those cases where the order is declared to be final, must
be considered as applying here, no doubt therefore the certiorari remains.
Besides^ an appeal is only given where the justices could decide summarily
or give costs, here they could do neither ; this is not a matter done by
justices, trustees, or commissioners, it is done by the jury ; therefore clearly
there is no appeal. And if the non-existence of a power of appeal implies
the existence of a certiorari^ and the certiorari is only taken away where an
appeal is given, then a certiorari must exist in the present case. Besides,
the subject-matter of the present proceedings could not be dealt with by an
appeal. The inquisition here is the judgment^ and not an interlocutory one, but
final, and so called by the act. The order upon it is only the execution, that
may be made in the books of the trustees ; it is only an order upon themselves
juttiees, truittit or eommitnonert, ar$ hereby
declared to he final and eonclutive, and except
under the particular circumstances hereinafter
mentioned,^ and for which no particular me-
thod of rehef hath been already appointed,
such person may appeal to the justices of the
peace at the next General or Quarter Sessions
of the Peace to be held for the county, divi-
sion, riding, or place wherein tlie cause of
such complaint shall arise, such appellant first
giving or causing to be given to such justice,
commissioner, or trustee, by whose act or acts
such person shall think himself or herself ag-
grieved, notice in writing of his or her inten«
tion to brin^ such appeal, and of the matter
thereof, withm six days after the cause of such
complaint shall arise, and within four days
•f^r such notice entering into recognisances
before some justice of the peace, with two suf-
ficient sureties, conditioneid to try such appeal
at, and abide the order of, and pay such costs
as shall be awarded by the justices at such
General or Quarter Sessions, and also to ^ay
the penalty or forfeiture, in case the convicUon
should be affirmed ; and each and every jus-
tice of the peace, commissioner, or trustee
having received notice of such appeal as
aforesaid, shall return all proceedings what-
ever had before him respectively, touching the
matter of such appeal, to the said justices at
their General or Quarter S^sions aforesaid,
and the said justices at such setsioos, upon
due proof of such notice having been given as
aforesaid, and of such recognisances having
been entered into in manner before directed,
shall hear and finally determine the causes
and matters of such appeal in a summary way,
and award such costs to the parties appealing
or appealed against, as they the said justices
shall think proper to be levied and recovered
by distress and sale of the goods and chattels
of the person or persons against whom such a
determination shall be given ; and the deter-
mination of such General or Quarter Seuiont
shaU be final and conclusive to all intenti and
fnirpotes, and no proceeding to be had or taken
in pursttance of this act, i^all be quashed or
vacated for want of form, or removed by eer-
tiorari, or an^ writ or process whatMWver, into
any of his Majesty's Courts of Record at West-
minster, any law or statute to the contrary not-
withstanding : Provided always^ that in case
there shall not be thne to ^ve such notice,
and enter into such recognisances as afore-
said, before the next sessions to be holden
after the conviction of the appellant, then and
in every such case such appeal may be made
to the next following sessions, and shall be
there heard and determined: Provided al-
ways, that no appeal shall be allowed against
any conviction tor any psatlty or fbrfeiture
which shall not eiceed tte lum of 40i.
cc2
386
TERM REPORTS in the KING'S BENCH.
and Watton
Turnpike
Road.
Khig*s Bench, trustees. But as yet there has been no judgment ; the inquisition was not a final
^•^/^^ judgment, it was a mere nullity, until confirmed by the order of the trustees.
The Kino J'\^q distinction between this case and The King v. Bagshaw{a) is, that there
The Trustees of ^^^ instrument was final and binding upon the parties ; here it is merely inter-
the Norwich locutory, and if there is an error, it may be amended when the order is made
up. It would be subjecting the trustees to great vexation, if at any period
a portion of the proceedings, which cannot be enforced against the party,
could be made the subject of an application to this Court. Besides, in Rex
v. Bagshaw (a), it appeared that no notice had been given ; here there is
merely an omission to recite it, and the proceedings in fact have all been
perfectly regular. The principle regulating the objections to proceedings by
magistrates is analogous ; in such case it is only on the instrument which
finally binds or affects the property or liberty of the subject, that the magis-
trates* authority need to appear. No doubt, in all substantial matters, the
inquisition must not be varied by the order, but in matters of form like these
it may. — [Coleridge^ J. — The jury have here found one gross sum ; how are
you to ascertain what are the respective sums to be paid to each of the par*
ties ?] — The only question to be inquired of by the jury was, the value of
certain leasehold property, and that they have found ; the process was to
inquire, not what was the interest of the parties, but what was the value
of the property, and that they have found.
Lastly, no certiorari can be had in this case. This was a proceeding under
the 3 G. 4, c. 126 (6), and that act, which directs the forms of proceedings,
(a) 7 T. R. 363.
(6) Section 145 of 3 G. 4, c. 126, enacts,
*' tnat if any person shall think himself or
herself aggrieved by any thing done by any
justice or justices of (he peace, in pursuance
of this act, except under the particular cir-
cumstances hereinafter mentioned, and for
which no particular method of relief hath
been already appointed, such person, in case
the penalty or forfeiture shall exceed the sum
of 40i., where the appeal is to be against a
conviction for a penalty or forfeiture, may ap-
peal to the justices of the peace at the next
General or Quarter Sessions of the Peace to
be held for the limit wherein the cause of such
complaint shall arise, such appellant first giv-
ing or causing to be given to such justice, by
whose act or acts such person shall think him-
self or herself aggrieved, notice in writing of
his or her intention to bring such appeal, and
of the matter thereof, within six days after the
cause of such complaint arose, and within
four days after such notice entering into re-
cognizances before some justice of the peace,
with two sufficient sureties conditioned to try
such appeal at, and abide the order of and
pay such costs as shall be awarded by the
justices at such Quarter Sessions, and also
to pay the penalty or forfeiture in case the
conviction should be affirmed ; and each and
every justice of the peace having received no-
tice of such appeal as aforesaid, shall return
all proceedings whatever had before him re-
spectively touching the matter of such appeal,
to the said justices at their General Quarter
Sessions aforesaid, on pain of forfeiting 50/.
for every such neglect 3 and the said justices
tt such sessions, upon due proof of such no-
tice having been ffiven as aforesaid, and of
such recognisance naving been entered into in
manner before directed, shall hear and finally
determine the causes and matters of such ap-
peal in a summary way, and award such costs
to the parties appealing or appealed against,
as the said justices shall think proper to be
levied and recovered, as hereinbefore directed,
and the determination of such Quarter Ses-
sions shall be final and condmive to all in-
tents and purpose$f and no proceeding to be had
or taken in pursuance of this act shall be
quashed or vacated for umnt of form, or re»
moved by certiorari or any other writ or pro-
cess whatever, into any of bis Mai esty*8 Courts
of Record at Westminster, any law or statute
to the contrary notwithstanding : Provided
always, that in case there shall not be time to
give such notice, and enter into recognisances
as aforesaid, before the next sessions to be
holden after the conviction of the appellant,
then and in every such case such appeal may
be made to the next following sesaions, and
shall be there heard and determined."
The 86th section of the 4 G. 4, c. 95, re-
cites the 145th section of the 3 G. 4, c. 126,
and repeals it. The 87th section of the 4 G. 4,
c. 95, enacts, " Provided always, and be it
further enacted, that if any person shall think
himself or herself aggrieviKi by any order,
judgment, or determination made, or by any
matter or thing done by any justice or justices
of the peace, or by any trustees or commis-
sioners of any turnpike roid, in pur$uanea of
this act or the said recited act, or any local act
for making, repairing, or maintaining any
turnpike road, (erttpt wheT€ th$ ordgr, judg*
ment, or determinatiom of any tuck ju$He9 or
MICHAELMAS TERM, 1836.
387
and Wattom
Turnpike
ROAP.
says, that they shall be final upon the parties. — [^Coleridge, J. — Section 145 King*s Bench.
in that act, wliich takes away the certiorari, is repealed by s. 86 in 4 G. 4, v^s/^
c. 95.]— That is true, but by sect. 87 of that act, the certiorari is also taken ^^^ ^^^^
away ; the same section also gives an appeal, and is quite clear that the le- xhe Trustees of
gislature intended, where there was an appeal, that there should not be a cer- the Norwich
iiorari, — [Coleridge, J. — How do you get out of the exception in that sec-
tion ?] — That does not apply to these proceedings^ which were under 3 G. 4,
the exception in section 87, 4 G. 4, is only as to matters under that act^ and
as to matters thereby declared to be final, it therefore cannot apply to pro-
ceedings under another act.
Biggs AndrewBi and Atutin, in support of the rule. — The two acts 3 G. 4
and 4 G. 4, are to be taken together, and for purposes of interpretation con-
sidered as one act. Therefore the exception in s. 87 of 4 G. 4, c. 126, which
expressly excepts those cases where the order is declared to be final, must
be considered as applying here, no doubt therefore the certiorari remains.
Besides, an appeal is only given where the justices could decide summarily
or give costs, here they could do neither ; this is not a matter done by
justices, trustees, or commissioners, it is done by the jury; therefore clearly
there is no appeal. And if the non-existence of a power of appeal implies
the existence of a certiorari, and the certiorari is only taken away where an
appeal is given, then a certiorari must exist in the present case. Besides,
the subject-matter of the present proceedings could not be dealt with by an
appeal. The inquisition here is the judgment^ and not an interlocutory one, but
final, and so called by the act. The order upon it is only the execution, that
may be made in the books of the trustees ; it is only an order upon themselves
justices f trustees or eommissionert, are her^y
declared to bejinal and conclusive, and except
under the particular circumstances hereinafter
mentioned,) and for which no particular me-
thod of relief hath been alreaay appointed,
such person may appeal to the justices of the
peace at the next General or Quarter Sessions
of the Peace to be held for the county, divi-
sion, riding, or place wherein tlie cause of
such compuiint shall arise, such appellant first
giving or causing to be given to such justice,
commissioner, or trustee, by whose act or acts
such person shall think himself or herself ag«
grieved, notice in writing of his or her inten-
tion to brinp; such app^, and of the matter
thereof, within six days after the cause of such
complaint shall arise, and within four days
after such notice entering into recognisances
before some justice of the peace, with two suf-
ficient sureties, conditioned to try such appeal
at, and abide the order of, and pay such costs
as shall be awarded by the justices at such
General or Quarter Sessions, and also to pay
the penalty or forfeiture, in case the conviction
should be affirmed ; and each and every jus-
tice of the peace, commissioner, or trustee
having received notice of such appeal as
aforesaid, shall return all proceedings what-
ever had before him respectively, touching the
matter of such appeal, to the said justices at
their General or Quarter Sessions aforesaid,
and the said justices at soch sessions, upon
due proof of such notice having been given as
aforesaid, and of such recognisances having
been entered into in manner before directed,
shall hear and finally determine the causes
and matters of such appeal in a summary way,
and award such costs to the parties appealing
or appealed against, as they the said justices
shall think proper to be levied and recovered
by distress andT sale of the goods and chattels
of the person or persons against whom such a
determination shall be given ; and the deter-
initiation of such General or Quarter Sessions
shaU be final and conclusive to all intents and
jmrpotes, and no proceeding to be had or takon
in pursuance of this act, shall be quashed or
vacated for want of form, or removed by cer-
tiorari, or an^ writ or process whatsoerer, into
any of his Majesty's Courts of Record at West-
minster, any law or statute to the contrary not-
withstanding : Provided always^ t^at in case
there shall not be time to ^ve such notice,
and enter into such recognisances as afore-
said, before the next sessions to be holden
afker the conviction of the appellant, then and
in every such case such appeal may be made
to the next following sessions, and shall be
there heard and determined : Provided al-
ways, that no appeal shall be allowed against
anjT conviction tor any penalty or Ibmture
which shall not eiceed ths nun of 40i.
cc2
386
TERM REPORTS ik the KING'S BENCH.
and Watton
Turnpike
Road.
Kifig't Bench, trustees. But as yet there has been no judgment ; the inquisition was not a final
v^s/^ judgment, it was a mere nullity, until confirmed by the order of the trustees.
The Kino xhe distinction between this case and The King v. Bagshaw{a) is, that there
The Trustees of ^^^ instrument was final and binding upon the parties ; here it is merely inter-
the Norwich locutory, and if there is an error, it may be amended when the order is made
up. It would be subjecting the trustees to great vexation, if at any period
a portion of the proceedings, which cannot be enforced against the party,
could be made the subject of an application to this Court. Besides, in Rex
v. Bagshaw (a), it appeared that no notice had been given ; here there is
merely an omission to recite it, and the proceedings in fact have all been
perfectly regular. The principle regulating the objections to proceedings by
magbtrates is analogous ; in such case it is only on the instrument which
finally binds or affects the property or liberty of the subject, that the magis-
trates* authority need to appear. No doubt, in all substantial matters, the
inquisition must not be varied by the order^ but in matters of form like these
it may. — [^Coleridge, J. — The jury have here found one gross sum ; how are
you to ascertain what are the respective sums to be paid to each of the par*
ties ?] — The only question to be inquired of by the jury was, the value of
certain leasehold property, and that they have found ; the process was to
inquire, not what was the interest of the parties, but what was the value
of the property, and that they have found.
Lastly, no certiorari can be had in this case. This was a proceeding under
the 3 G. 4, c. 126 (6), and that act, which directs the forms of proceedings.
(a) 7 T. R. 363.
h) Section 145 of 3 G. 4, c. 126, enacts,
" tnat if any person shall think himself or
herself aggrieved by any thing done by any
justice or justices of (he peace, in pursuance
of this act, except under the particular cir-
cumstances hereinafter mentioned, and for
which no particular method of relief hath
been already appointed, such person, in case
the penaltv or forfeiture shall exceed the sum
of 40i., where the appeal is to be against a
conviction for a penalty or forfeiture, may ap-
peal to the justices of the peace at the next
General or Quarter Sessions of the Peace to
be held for the limit wherein the cause of such
complaint shall arise, such appellant first giv-
ing or causing to be given to such justice, by
whose act or acts such person shall think him-
self or herself aggrieved, notice in writing of
his or her intention to bring such appeal, aud
of the matter thereof, within six days after the
cause of such complaint arose, and within
four days after such notice entering into re-
cognizances before some justice of the peace,
with two sufficient sureties conditioned to try
such appeal at, and abide the order of and
pay sucn costs as shall be awarded by the
justices at such Quarter Sessions, and also
to pay the penalty or forfeiture in case the
conviction should be affirmed ; and each and
every justice of the peace having received no-
tice of such appeal as aforesaid, shall return
all proceedings whatever had before him re-
apectively touching the matter of such appeal,
to the said justices at their General Quarter
Sessions aforesaid, on pain of forfeiting 50/.
for every such neglect 3 and the said justices
tt such sessions, upon due proof of such no-
tice having been c^iven as aforesaid, and of
such recognisance having been entered into ia
manner before directed, shall hear and finally
determine the causes and matters of such ap-
peal in a summary way, and award such costs
to the parties appealing or appealed against,
as the said justices shall think proper to be
levied and recovered, as hereinbefore directed,
and the determination of such Quarter Ses-
sions shall be final and eoncluiive to all in*
tents and purposes, and no proceeding to be had
or taken in pursuance of this act shall be
quashed or vacated for trant of form, or re-
fnoved by certiorari or any other writ or pro-
cess whatever, into any of bis Mai esty*s Courts
of Record at Westminster, any law or statute
to the contrary notwithstanding : Provided
always, that in case there shall not be time to
give such notice, and enter into recognimnces
as aforesaid, before the next sessions to be
holden after the conviction of the appellant,
then and in every such case such appeal may
be made to the next following sessions, and
shall be there heard and determined."
The 86th section of the 4 G. 4, c. 95, re-
cites the 145th section of the 3 G. 4, c. 126,
and repeals it. The 87th section of the 4 G. 4,
c. 95, enacts, " Provided always, and be it
further enacted, that if any person shall think
himself or herself aggrieved by any order,
judgment, or determination made, or by any
matter or thing done by any justice or justices
of the peace, or by any trustees or commis-
sioners of any turnpike road, in pursuance 0/*
this act or the said recited act, or any loail act
for making, repairing, or maintaining any
turnpike road, (except where the erder, Judg»
ment, or determination of any tuck juiHee or
MICHAELMAS TERM, 1836.
387
says, that they shall be final upon the parties. — [^Coleridgef J. — Section 145 King's Bench.
in that act, which takes away the certiorarif is repealed by s. 86 in 4 G, 4, v^s/^
c. 95.] — That is true, but by sect. 87 of that act, the certiorari is also taken "^^^ *^*^°
away ; the same section also gives an appeal, and is quite clear that the le- xhe Trustees of
gislature intended, where there was an appeal, that there should not be a cer- the Norwich
iiorari. — ICoUridge, J. — How do you get out of the exception in that sec- "xurhp™"
tion ?] — That does not apply to these proceedings^ which were under 3 G. 4, Road.
the exception in section 87, 4 G. 4, is only as to matters under that act^ and
as to matters thereby declared to be final, it therefore cannot apply to pro-
ceedings under another act.
Biggi Andrews, and Ausiin, in support of the rule. — The two acts 8 G. 4
and 4 G. 4, are to be taken together, and for purposes of interpretation con-
sidered as one act. Therefore the exception in s. 87 of 4 G. 4, c. 126, which
expressly excepts those cases where the order is declared to be final, must
be considered as applying here, no doubt therefore the certiorari remains.
Besides, an appeal is only given where the justices could decide summarily
or give costs, here they could do neither ; this is not a matter done by
justices, trustees, or commissioners, it is done by the jury ; therefore clearly
there is no appeal. And if the non-existence of a power of appeal implies
the existence of a certiorari, and the certiorari is only taken away where an
appeal is given, then a certiorari roiut exist in the present case. Besides,
the subject-matter of the present proceedings could not be dealt with by an
appeal. The inquisition here is the judgment, and not an interlocutory one, but
final, and so called by the act. The order upon it is only the execution, that
may be made in the books of the trustees ; it is only an order upon themselves
juttiees, truittis or eommiitionert, are hereby
declared to bejinal and conclusive ^ and except
under the particular circumstances hereinafter
tneotioned,) and for which no particular me-
thod of relief hath been already appointed,
such person may appeal to the justices of the
peace at the next General or Quarter Sessions
of the Peace to be held for the county, divi-
sion, riding, or place wherein tlie cause of
such compUint shall arise, such appellant first
giving or causing to be given to such justice,
commissioner, or trustee, by whose act or acts
such person shall think himself or herself ag-
grieved, notice in writing of his or her inten-
tion to brio^ such appeal, and of the matter
thereof, withm six days after the cause of such
complaint shall arise, and within four days
a^er such notice entering into recognisances
before some justice of the peace, with two suf-
ficient sureties, conditioned to try such appeal
at, and abide the order of, and pay stich costs
as shall be awarded by the justices at such
General or Quarter Sessions, and also to pay
the penalty or forfeiture, in case the conviction
should be a£Brmed ; and each and every jus-
tice of the peace, commissioner, or trustee
having received notice of such appeal as
aforesaid, shall return all proceedings what-
ever had before him respectively, touching the
matter of such appeal, to the said justices at
their General or Quarter Sessions aforesaid.
and the said justices at sach sessions, upon
due proof of such notice having been given as
aforesaid, and of such recognisances having
been entered into in manner before directed,
shall hear and finally determine the causes
and matters of such appeal in a summary way,
and award such costs to the parties appealing
or appealed against, as they the said justices
shall think proper to be levied and recovered
by distress and sale of the goods and chattels
of the person or persons against whom such a
determination shall be given ; and the deter-
mination of such General or Quarter Seuions
shall be final and conclusive to all intents and
purposes, and no proceeding to be had or taken
in pursuance of this act, shall be quashed or
vacated for want of form, or removed by cer-
tiorari, or an^ writ or process whatM>ever, into
any of his Majesty's Courts of Record at West-
minster, any law or statute to the contrary not-
withstanding : Provided always^ that in case
there shall not be time to ^ve such notice,
and enter into such recognisances as afore-
said, before the next sessions to be holden
after the conviction of the appellant, then and
in every such case such appeal may be made
to the next following sessions, and shall be
there heard and determined : Provided al-
ways, that no appeal shall be allowed against
anj^ conviction tor any penalty or forfeiture
which shall not eiceed the fum of 40i.
cc2
388 TERM REPORTS in the KING'S BENCH.
King*s B$nch, to pay. Indeed tliere is nothing to shew that it may not be verbal, and if not
v^/^^ necessary to be made in writing, certainly it is not necessary to wait till it is
The KiKo made, before a certiorari can issue. But suppose otherwise, still the order
Tlie Trustees of ii^ust follow the finding of the jury, and therefore would have the same defects
the Norwich in it. If otherwise, the trustees might alter or amend, as if it had been a bad
"i\ir11pIke'' "^ticc. That is, if dissatisfied with the finding of the jury, they might correct
Road. it themselves. In all cases where the proceeding is to be binding, it must
shew on the face of it an authority for that proceeding; therefore the
notices should have been set out on the face of the inquisition. Rex v. Mayor
of Liverpool (a). Rex v. Bagshaw (6), Rex v. Sheppard (c). Rex v. fFUson ((/).
The inquisition must shew that the jury were properly summoned. The argu-
ment used proves too much ; according to that it need not shew any authority
at all, but it is quite clear that the precept of the trustees must be set forth.
Then it is admitted on all sides that the interests of the parties were difierent,
their affidavits shew it. The jury w*ere sworn to assess the damages respec-
tively, and they have only done it in gross. If the money were paid to any
one of these parties, how were the others to obtain it ? How is it possible to
divide the damages among these five parties ? The costs also are to be divided
by the inquisition, therefore it ought to shew who are liable to them, and in
what proportions. The costs are to be levied by distress — how would it be
possible so to levy them here ? No damages are assessed as a recompence
to the claimants for the expense of keeping up additional fences, which by
reason of this road they would be obliged to do ; Rex v. The Coffimissioners
of Llandilo Roads (c).
Lord Denman, C. J. — The first objection to this inquisition is, that it docs
not contain the notice required by the act of parliament, in order to give
jurisdiction to the jury. It is not necessary to enter into that, because Rex
v. Bagshaw {h) clearly shews, that if no notice appears upon the face of tlie
whole proceedings, they are void. Neither need we inquire whether such
defect can be supplied afterwards, because I think that another conclusive
objection exists to the inquisition. The jury were impanelled and sworn to
assess the respective value of the respective estates of the several parties
interested ; instead of doing that, they have awarded a sum in gross for die
whole, leaving each party in doubt as to the proportion to which he was
entitled.
But a question has been raised, whether we can entertain this application
by reason of the 87th section of 4 G, 4, c. 95, which enacts, ** that no
proceeding to be had or taken in pursuance of that act, shall be quashed or
vacated for want of form or removable by certiorari" We are called upon to
presume that these words, <* in pursuance of this act,'' mean, as well any
thing required to be done by 3 G. 4, as by 4 G, 4, because the 87th section
commences by giving an appeal, as well for matters done under the former
as the latter ; but I do not admit of that conclusion. I think that the two
acts were intended to operate distinctly, and that the words " in pursuance
of this act," must be confined to acts done in pursuance of some enactment of
that act, and does not extend to those which are merely recognised and re«
(a) 4 Burr. 2244. (d) 5 Nev. & Man. 164.
(6) 7 T. R. 363. (e) 2 T. R. 234.
(c) 3 B. & A. 414.
MICHAELMAS TERM, 1836. 389
ferred to by it. Then it is said, that an appeal is given by the same 87th King's Bench.
section, and that in all cases where an appeal was given, the certiorari was ^^nrw
intended to be taken away. Assuming such to be the intention, still it does "^'^^ Kino
not appear that any appeal is given in this case. The appeal is only given j^^^ Trustees of
against an act done by a justice, trustee, or commissioner. Now, an inqui- the Norwich
sition is not an act done by any one of those parties, but by the jury who *^ Watton
were impanelled and sworn for that purpose. I tliink, therefore, that the Road.
certiorari was not taken away ; and also, that there is a fatal defect in the
proceedings.
Patteson, J. — I am clearly of opinion that the 87th section of 4 G. 4,
does not apply to the present proceedings, which were not in any way pro-
ceedings under that act. By that section the certiorari is taken away only as
to proceedings " in pursuance of this act^" and these words, taken alone,
clearly do not apply on the present occasion. But then it is argued, that
because in the same section an appeal is given, not only with respect to acts
done under this act, but also under other acts, that therefore the taking
away of the certiorari was intended to be co-extensive with the giving of the
appeal. If that were the intention, it has not been effected. Neither can I
think that such was the intention. Because, since, in one part of the section,
the words are, " this act^ the said recited act, or any local act ;" and in another,
** this act" alone, I must suppose that the omission in the latter occasion was
intended to restrict the operation of the enactment to proceedings done
under ** this act'' only. At all events^ if it had been held that the words
this act must be construed to mean ant/ act, then the word hereby, occurring
in the exception, must mean hy any act. No doubt the exception is very
absurdly varied from the enacting clause. However, the better way seems
to be to abide by the words of the act, and as the certiorari is taken away
from the proceedings under this act only, and these are not proceedings
under this act, therefore the certiorari is not taken away. As to the point
that this inquisition is not a final proceeding, the words of section 85 of
3 G, 4, c. 126, aYe, '* that after the said jury shall have inquired of and as-
sessed such damages and recompence, they, the said trustees or commis«
sioners, shall thereupon order the sum so assessed by the jury to be paid
to the said owners or other persons interested, according to the verdict or
inquisition of such jury;** and it further provides, " that such verdict or in-
quisition and judgment, order and determination thereon, shall be fmal,
binding, and conclusive." This involves a contradiction in terms, because a
judgment is not a verdict, it is a consequence of it. It is difHcuIt to under-
stand which of the two was meant to be made final ; I think the best way of
treating the sentence is, to say it has no meaning at all. However, the ques-
tion we have to determine is, whether the inquisition alone, before the order
of the trustees has been made, is so far final as to admit of the present ap-
plication being made. I think that the trustees have no power to make the
judgment ; all that they are directed to do is to make thfe order for the payment
of the money to the parties interested, according to the inquisition of the jury«
The order is not a judgment, the duty of the trustees is merely ministerial ; it
is the inquisition itself therefore which is final and binding ; therefore we may
look at the inquisition itself. And as to that, I think the objection men-
tioned by my lord is fatal. The jury w^re 9 worn to assess the sum to bf
390
TERM REPORTS in thb KING'S BENCH.
King's Ben$h, P^^ ^ ^^^ ^^ ^^e parties respectively, as the value of each respective estate,
Wv^ hut instead of that they have awarded one gross sum to all of them.
The Kino It becomes, therefore, unnecessary to inquire whether it is necessary to
The Trustees of ^^^ ^"^ ^^^ notices in the inquisition. I do not wish to be understood as say-
Uie Norwich ing that the notices must be set out, although I incline to thipk that they
B^ Watton ought ; not as a finding of the jury, but analogously, if I may so express
RoiD. myself^ to the captiop of an indictment.
Williams, J. — The only doubt which I have felt in this case has been,
whether the proceedings were sufficiently complete to admit of this applica-
tion being made. And that doubt was wholly removed upon it appearing .
that the order of the trustees is altogether a ministerial act, and must neces-
sarily merely follow the inquisition of the jury. And that inquisition I think
defective, for the reasons that have been already given. I also am of opinion^^
that the notices ought to have appeared on the face of the inquisition, inas-
much as they form the entire foundation of the jurisdiction possessed by the
jury in the present case. An order of magistrates is always supposed to
receive the fullest protection from this Court, and it certainly is necessary
that the authority of the magistrate should appear upon the face of that
document.
As to the existence of the certiorari, it is established that a certiorari can
only be taken away by the clearest and most distinct words. I tlierefore
think it has not been taken away here, for the words used are any thing but
clear and distinct.
CoLEBiDOE, J. — The most important question to be considered is, whether
the certiorari has been taken away. I always have understood the rule to
be, that an appeal can be given, and a certiorari taken away by express
words only. Rex v. Terrett (a) is an instance of the strict observance of that
rule. By an act of parliament jurisdiction was given to an inferior Court,
and as to the proceedings under that act the certiorari was taken away. A
subsequent act extended the jurisdiction of the Court, but contained no pro-
vision relative to the certiorari. And it was held, notwithstanding the prior
enactment, that a certiorari existed as to all proceedings under the latter act.
In the present case the proceedings were under 3 G. 4. The clause in
that act taking away the certiorari was repealed by 4 G. 4. The question then
is, whether the right of cer/tor^rri there revived, has been again taken away by
4 6r. 4. I think clearly not, because the clause in 4 G, 4, taking away the
certiorari, is confined to proceedings had in pursuance of that act only. An
argument has been raised, that as a right of appeal has been given, tliat
therefore the certiorari must be presumed to be taken away. The answer to
that is, that the certiorari cannot be taken away by implication only. There
may be an appeal and yet no certiorari, and vice vend, there may be a certiorari
and yet no appeal. The argument is one of probability only.
With regard to the next question, whether this application could properly
be made in this stage of the proceeding ; the rule which I understand to
exist is, that so soon as the proceedings have arrived at such a stage, that
any error made is irremediable ; then the party interested may apply to this
(a) 2 T. R. 736.
MICHAELMAS TERM, 1836. 391
Court for the purpose of having that error corrected. Then have the pro- King's Bench,
cecdings arrived at such a stage on the present occasion ? It is perfectly wnrw
clear that they have, because that error which has been shewn to exist is The Kino
one which, unless corrected by this Court, must remain throughout and up to j^^ Trustees of
the end of the proceeding. The jury have not done that which they were the Nouwicii
impanelled and sworn to do ; and instead of that, they have put things in *^ Wattok
such a state that the most serious questions must arise as to the claims of the Road.
parties to their respective proportions, both of the sum of money, and as to
the costs awarded. Suppose, in addition to the lessees of this property, all
entitled to different shares, as appears by the notices, the owner in fee and
the reversioner had also been claimants for compensation, the form of im-
panelling and swearing the jury would have been just the same. And then,
according to the argument, although the finding had been just in the same
form of one gross sum for all these claimants, still that finding would have
been good, although it would have been impossible afterwards to ascertain
the relative proportions in which they were entitled. Such a defect seems
to me substantially irremediable, and I therefore think the parties are en-
titled to make this application in the present stage.
Rule absolute.
Doe d. Rowlandson v. Wainwright.
November 3d,
pJJECTMENT, tried before Coleridge^ J. at the Summer Assizes held at in an nctiou of
Liverpool. The lessor of the plaintiff relied on a deed of feoffment, ^^^^"Jitir
under which the premises in dispute were conveyed to Michael and Jeremiah th« occasion of a
Williams^ and their heirs, to the use of Michael and Jeremiah^ and the heirs ^J^J ^^ ^Hc-
and assigns of Michael^ in trust for Michael Williams, his heirs and assigns, fendant, a feoff-
It was proved that the Williams's had been in possession of the premises, and handed orer to
also, after the execution of the feoffment, and after possession by the Wil- *^'" ^^ ^** ^*"
!•» jri* iiii • • mi 1 • •/¥» vendor, an altor-
Itams 5, one Jioughlon, an attorney, had also been m possession. 1 he plamtilt ney, that the par.
called upon the defendant to produce the feoffment, and upon his refusal, *j,^vJoffj^°n*^]||^
having proved a notice to produce it, called as witness a clerk to Houghton^ made, had pos.
by whom, as the witness stated, the premises had been sold to the defend- [Jft^^afte'Tulo mI
ant, on which occasion an abstract, containing a correct statement of the con- cution of the feoff-
tents of the feoffment, was prepared, and had been in his possession ever Jheh-^wLewion,
since. He also stated that the feoffment was delivered to the defendant the premises had
on the occasion of the sale ; and that there was an attesting witness to 8ion°of'ihe*v^dor;
the feoffment, and an indorsement of livery of seisin. He then produced ''»« executbu of
the abstract, which was offered in evidence. This was objected to. It was also attested by a wit-
urged that the attesting witness ouirht to have been called to prove the execu- "*"' ""? V'"*
. ° . . . . was an indorsc-
tion of the deed, and that it was necessary to prove actual livery of seisin, meut upon it of
The learned judge admitted the abstract in evidence, and held that it was ai^.o'Jit^8ted by a
not necessary to call the attesting witness, or to give evidence of actual witness,
livery of seisin ; but afterwards, on a verdict being found for the plaintiff, RbftlJ^roTthe"
gave the defendant leave to move to enter a nonsuit. feoffment was
produced by a
witness, clerk to
thn vendor, who proved Uiat it was made on the occasion of tlic sule, and had been In his possession ever
since:— Ht/d, that the ilefcndaut must be presumed to hold under the feoffment, and tliat not bavingi
after due uotice, produced it, the abstmct was admissible in evidence, tliMt It was not necessary to call thf
aitesUug witncM to prove Uie execution, nor to give evidence of actual livery of seisio.
392 TERM REPORTS in the KING'S BENCH.
King*t Bench. Neoiie now moved accordingly.— When secondary evidence is admissible
^^^^^ the best must be offered that can be produced ; Mun v. Goodbold (a). An
^^ abstract is not such evidence. The best secondary evidence of a deed is a
RowLANiisoN counterpart ; the next, an examined copy ; an abstract is the lowest kind of
V* secondary evidence. Next, the subscribing witness to the deed ought to
AiNWRiGUT. Y^^y^ \yeexi called. Mr. Starkk(b) lays down in very clear and strong terms
the necessity to call the subscribing witness to a deed, and the reasons for
that necessity. It was said at the trial, that as the defendant claimed under
the deed of feoffment, it was not necessary formerly to prove its execution ;
and Doe v. Hemming (c) was cited in support of that position. But here
there had been nothing done by the defendant to recognise the validity of
the deed, as there had been by the attorney of the lessors of the plaintiff in
that case. For even if a sale did take place, of which there was no legal
proof, and the feoffment was handed over on that occasion, still the only
necessary inference from that is, that the equitable estate was transferred, an
estate of which the Court can take no cognisance in an action of ejectment.
There was nothing before the Court, therefore, to shew that the defendant
did claim under the feoffment. Moreover, even if this objection did not
exist, it would often be a great hardship upon a purchaser to assume that he
holds under the deeds delivered to him at the time o^ the purchase. He
may find it expedient to rely simply on his profession, repudiating the deeds
delivered ; and there is no reason why he should be deprived of the advan-
tage of doing so, and placed in a worse condition than if he had no title-
deeds. Again, livery of seisin is the efficient part of a feoffment, and of
this there was no proof. Before the Statute of Frauds, when feoffments by
|>arol were frequently in use, they must have been proved by evidence of
the livery of seisin, and that statute has not altered the mode of proof. Nor
will it be presumed from the indorsement that a livery had actually taken
place ; Doe v. The Marquis of Cleveland {d) ; and Mr. Justice Buller (c) lays
it down, that the proof of due execution of a feoffment is not sufficient alone
to establish a right, but that livery of seisin must also be proved ; and it is
a fact which the jury must expressly find before the Court can adjudge the
conveyance to be good. Here there was no such finding.
Lord Denman, C. J. — In this case the defendant, after due notice, having
declined to produce the feoffment under which the plaintiff claimed, the
plaintiff offered an abstract as secondary evidence of the feoffment itself.
I'he abstract had been prepared by the witness producing it, a clerk to one
Houghton, an attorney, the vendor, on a conveyance to the defendant. I
think that this abstract was receivable, provided the defendant claimed under
it. Houghton, it appeared, entered on the premises after the feoffment was
executed, and after the WilUamsU, parties to whose use it was made, had
been in possession under it, and was in possession of the premises when he
sold them to the defendant. Surely it would be unreasonable to assume
that the defendant did not claim under Houghton, or that the latter did not
claim under the IViUidmss. As to the objection, that livery of seisin ought
to have been proved, it is obvioUs, that if it be not necessary to prove the
00 3 Ring. 292. (c) 6 B. & C. 28.
ih) 1 Sturk. £v. 32<^i where the cases are ((/) 9 B. & C. 864.
collected^ (r) Bull. Nisi Prius, 2d6, a.
MICHAELMAS TERM, 1836. 393
feofTment itself, it cannot be necessary to prove livery of seisin, the opera- King's Batch,
tive part of a conveyance of feoffment.
Doe
Patteson, J. — I am of the same opinion. The first question to be con- ^'
sidercd is, whether the abstract was sufficient secondary evidence of the
V,
fcoflinent. I do not mean to say, had it been proved that a copy was in Wainwbicut.
existence, that the copy ought not to have been produced. The books cer-
tainly do lay down that a counterpart of a deed is the best evidence of it, a
copy the next ; an abstract is placed last in the order. Still, in the absence
of secondary evidence of a superior degree, no objection can be raised to the
admission of an abstract. Here there was no evidence whatever of any
counterpart having existed at all. It lay on the defendant, before he could
object to the secondary evidence offered, to shew that better secondary evi-
dence was producible ; and as he did not do that, the abstract was properly
admitted. It was next objected, that the subscribing witness should have
been called ; but if it appeared that the defendant claimed under the feoff-
ment, that certainly was not necessary. Had the defendant produced the
feofTment, it cannot be contended that it would be necessary. Here he did
not produce it, but it was proved that he received it when tlie conveyance
was made to him and he took possession. It would be rather too much to
allow him, for the purposes of this cause, to say that he does not claim
under it. His mouth, I think, is closed. The subscribing witness then
need not be called. So with respect to the livery of seisin, had the feofT-
ment been produced with livery of seisin indorsed, it would not have been
necessary to prove actual livery, because the party producing it claimed
under it. Here the production of it was dispensed with, for a reason which
places the party not producing it in the same situation with respect to livery
of seisin as if he had produced it. Then it is said that the jury did not find
livery of seisin, but in effect they did. They found for the plaintiff, and
that finding involves a finding of livery of seisin.
Williams, J. — The moment that any secondary evidence is let in, all is
let in ; subject, no doubt, to be marshalled according to its goodness in degree.
As in this case, however, there was no proof that any counterpart or copy
was in existence, the abstract was admissible. I think also, that the proof
of livery of seisin, and of the execution of the deed by the subscribing wit-
ness, certainly was not necessary ; because the defendant was a party claiming
under the feofTment ; and that no doubt he was, since it appears that the
feofTment was handed over to him on the occasion of his purchase, as a part
of his title. From those circumstances we can draw no other inference.
Coleridge, J. — I am of the same opinion. As to the admission of dif-
ferent degrees of secondary evidence, the judge seems to stand somewhat in
the nature both of judge and jury ; much in the same way as when it
becomes his duty to determine whether there has been sufficient search for
the original document in order to let in secondary evidence at all. There is
no general technical rule. With respect to the abstract, from that it appeared
that there was an attesting witness to the original deed. I thought that the
present fell within the principle of those cases which determine, that where
a party claims under a deed, and he produces that deed on notice, it is not
necessary for the other party to prove the execution of it. It appeared that
Houghton^ an attomeyi being in possession of the property, and also of the
394
TERM REPORTS jn wb KING'S BENCH.
DOK
d.
RoWLANDbON
V.
Wain w BIGHT.
King's Bitich. feoSment, sold the property to the defendant, on which occasion the abstract
was prepared, and ever since had remained in the possession of the witness
producing it, but that the feoffment was handed over to the defendant. Now
if the defendant had produced the feoffment, it would not have been open
for him to say, *' I do not claim under this feoffment." All the evidence
shewed that he did ; therefore it would not in such case have been neces-
sary to call the attesting witness as against him ; and if not, what creates
that necessity when secondary evidence of the deed is to be given? I
think with the rest of the Court, that since no evidence was given of the
existence of a copy, the point as to the reception of the abstract does not
arise. Under the circumstances no doubt parol evidence was admissible,
and to my mind, an abstract of the material parts of the deed is far
more satisfactory than any kind of parol evidence that could be offered.
As to the proof of livery of seisin, it appeared by the indorsement that livery
of seisin had been also attested by a witness. I thought that the objection
raised on this point fell within the principle which disposed of the other
relative to the execution. If not necessary to call a witness for the one
purpose, I could see no reason why it should be necessary to call one for the
other.
Rule refused (a).
(a) The Court graiUed a rule nisi for a new trial on another ground.
November Bth,
In aD action
upon a bill of ex*
change purporting
to have been
drawn by A.,
resident abroad,
upon B.f resident
in Ettgiand; the
plaintiff having
proved that it was
seen abroad im-
mediately after
tlie date of it :—
JItid, that it was
not necessary, in
order to shew tliat
it was a foreign
b'MfOho to prove
that the bill was
tlieu in an unac-
cepted state.
DeMPILLIERS v. HOLDEN.
A CTION by indorsee against acceptor of a foreign bill of exchange, dated
Brussels, tried before Lord Denman, C. J. at the sittings afler last term.
The declaration alleged the bill to have been drawn beyond seas by Elianson^
Clark, and Co., and to have been accepted by the defendant, and to have been
indorsed to the plaintiffs. The first plea denied the acceptance, and the se-
cond denied the indorsement. The defendant lived near London, and the
bill was drawn on plain paper without any stamp. A witness was called by
the plaintiff, who proved that he saw Clark, one of the drawers, the day after
the date of the bill, at Antwerp or Brussels, and that the bill was then in his
possession ; but whether or not it was then accepted, he was unable to say. Lord
Denman thought, that under these circumstances the bill must be presumed
to have been drawn beyond seas, and did not therefore require a stamp, and
a verdict was then found for the plaintiff.
Piatt, now contended, as he had done at the trial, that there ought to have
been distinct proof that the bill, when seen abroad, was in an unaccepted
state ; because the drawer living near London, it was clear that if the bill
were then accepted, it must have been drawn in England.
Patt£Son, J. — I do not see any difficulty in this case. The bill was seen
abroad the day after the date of it, in the hands of one of the drawers, at
Brussels. There would be great inconvenience if, in the case of foreign
bills, we were to require evidence that they were seen in an unaccepted
state abroad.
Williams, J. and Coleridge, J. concurred.
Rule refused*
MICHAELMAS TEBM, 1836. 395
King*t Bench,
Parry v. Deebe.
November 8t/i.
A SSUMPSIT for use apd occupation of a messuage and lands, tried at The proper
the last assizes for the county oi Berks ^ before Littledale, J. Plea, the dewUing^anMnT'
general issue, and a set-off: — verdict for the plaintiff. At the trial it be- »«■»« "»>d *«nd»
came necessary for the plaintiff to give in evidence a lease, by which 2)oit- t^iued by the
ninston Priory ^ and the lands thereto belonffinff, were leased at a certain rent »n»tnimeni, and
° . •' . o o» ^ alio certain other
Stated in the instrument ; other lands were also leased, the occupation of laads at the rent
which was to begin at a subsequent period, and which were described by the JJ^ ^"^^^'bm
instrument as being in the occupation of Slocock and Hollowat/f and the rent not mentioning
to be paid for them was stated to be the same as was paid by those persons, JIl't*rcut "L^an ai
but the amount which was so paid was not mentioned in the instrument. At mAwvot stamp cai-
the trial Slocock and IloUowayt who had held by a parol lease, were called^ ^".'iq a,^^nt of
and they proved the rent which had been paid by them for the lands in ques- ^'>« «nt to be
tion. The lease was stamped with an ad valorem stamp, calculated upon the unds.
whole amount paid both for Donnington Prtory, the lands thereto belonging,
and the other lands. It was objected at the trial that the lease in question
was not admissible in evidence, as not being properly stamped. The objec-
tion was overruled by the learned judge, who gave the defendant leave to
move to enter a nonsuit.
Ludlow 9 Serjt. now moved accordingly. — This lease does not fall within
any of the three kinds of leases which are described in the stamp act. It
therefore comes under the class of leases " not otherwise charged," and
ought to have been stamped with a H. 15^. stamp. It was a lease of lands
at a rent which was afler wards to be ascertained, no possible ad valorem duty
was capable of being put on this lease. He then referred to the cases of
Robinson v. MacdonneU (ji), and Turner v. Power {b), — [Patteson^ J. — There
is no case which determines what shall be the amount of the stamp, where
the document is silent as to the amount of the rent. But upon the principle
contended for, supposing A, to hold lands at a rent of 1000/., and that the
year before he lefl they were let to i^. by a lease, reserving '* the rent paid
by /!/.,'' then 1/. \5s, would be the proper stamp.]
Cur. adv, vult.
At a subsequent day in this term, the judgment of the Court was deli-
vered by
Lord Denman, C. J. - -This was a question whether a lease demising cer-
tain lands at a rent ascertained by the instrument, and also certain other
lands at the rent then paid by the existing occupiers, but which rent was
not further ascertained by the instrument, fell within the non-descriptive class
of leases in the stamp act ; and therefore required a stamp of 1/. 15#. We
have no doubt that it is not within the non-descriptive class, and that there-
fore the stamp, which was an ad valorem one, was good. We think the cases
cited are not applicable ; there will therefore be no rule.
Rule refused.
(a) 6 M. & S. 298. (b) 7 B. & C. 625.
396 TERM REPORTS in the KING'S BENCH.
King*s Bench,
The King v. The Lord of the Manor of Hexham, and the
Steward of the said Manor.
November 9lh,
Where » party ITM^ ff, WATSON, ID HUary Term, had obtained a rule nisi calling on the
boid'tcucnicat * defendants to shew cause why a mandamus should not issue, com-
cHonot try his manding them to admit Richard Errmston to certain copyhold tenements
right without ad- •i^i i> rr i i •!»• /•r^fifv i
mission, the Court withm the manor ot Iiexnam, as the right heir of Elnabelh Armstrongs de-
ofir. B.wiii ceased, late tenant thereof, according to the custom of the manor. The
compel Uic lord t^.'^yj.,-,. °
admit iiim, even affidavit o\ Rtchard Errington stated, that Elizabeth Armstrong, m Nirvember,
ulitrhMX^y ^^^'^» ^^^^ seised in fee of the copyhold tenements in question, having before
been admitted. her death duly surrendered unto the use of her will, by which, after several
intermediate devises, she devised to one William Ord for life, with remainder
over to her right heirs ; that William Ord afterwards became seised under
such will of the said tenements, for the term of his natural life, with re-
mainder over to the right heirs o^ Elizabeth Armstrong, and in December, 1801,
was admitted for the term of his natural life, and in November, 1832, died so
seised, whereby the said tenements descended to Errington, as right heir of
Elizabeth Armstrong, That 20th June, 1 835, Errington was found by the
homage to be the right heir of Elizabeth Armstrong, and claimed to be ad-
mitted; but that the defendants had always refused to admit him. The
affidavit of the steward stated, that Ord was admitted tenant to the tenements
in question, not for the term of his natural life, but pursuant to the limita-
tions and remainder over of the will of Elizabeth Armstrong. That the evidence
offered by Errington to shew that he was heir to Elizabeth Armstrong, did
appear to the defendant conclusive. That by the rolls of the Court, October,
1809, it appears that William Ord was the right heir (a) of Elizabeth Arm-
strong, failing the limitations in her will, and that he then surrendered to the
use of his will. December, lS2if, he published his will, devising to Barbara
and Elizabeth Poole, as tenants in common. October, 1835, they were ad-
mitted pursuant to the intention of such will. The affidavit further stated,
that the only reasons the defendant had for refusing to admit Errington were,
that there was a surrender on the rolls of the Court to the use of the will of
William Ord, who was the last tenant of the premises on the rolls previous to
the aftcrmentioned admission of Barbara and Elizabeth Poole : that Ord had
devised the premises in the manner stated, and that Barbara and Elizabeth
Poole were, at the time of the application of Errington, entitled by the
custom of the manor, and had claimed by their attorney, to be admitted in
preference to Errington,
J, Bayletj, who appeared to shew cause, after stating the facts and call-
ing the attention of the Court to the cases of Rex v. The Brewers' Company {b),
and Rex V, Wilson {c), said that the defendants had no further object in
opposing the rule, than to ascertain what this Court should think was the
fitting course for them to pursue.
(a) On the roll, " next heir or one of the (b) 3 n. k C. 172.
next heirs/' (c) 10 13. k C. 80.
MICHAELMAS TERM, 1836. 397
Per Curiam (a), (without hearing PTaison at length.) — We think that this KiHg*t Bench,
rule must he made absolute. And upon this principle, that if the discretion v^/^/
to admit or not wholly rested with the steward, it would sometimes be in his The Kino
power to exclude contesting parties from trying their rights. j^ ^\ . .
Rule absolute. Manor and
(fl) Lord Denman, C. J. and Colendge, J. IIexhaii
The King v. Richard Higgins.
Niivem!>er 9lh.
TMTAULE had obtained a rule in Hilary Term last, calling upon the de- Hie court of
fendant to shew cause why the writ o^ certiorari issued in this prosecu- grint co»tt"to* ihc
tion, should not be quashed, and a writ o{ procedendo awarded ; and why the prosecotor in a
defendant should not pay to the prosecutor, or his attorney, the costs in- ii,JI,gh SioIi'*coii8
curred by him in this prosecution at the Michaelmas Sessions, 1835, for 'wvebeenin.
the county of Hereford. A true bill of indictment was found against the quenccofti.e*de-
defendant at the Afrc^aeZ/wfl* Sessions, 1834- ; he appeared and pleaded not f''nd«n"»»ving
guilty at the Epiphany Sessions following^ and traversed to the Easter improperly kept.
Sessions. In March he sued out a writ of certiorari. At the Easter Ses- ^*^[»o»»uiviog
nouce of il, a
sions, prior to sending down the certiorari, the attorneys of the prosecutor eertUrmri, which
and of the defendant, for their mutual convenience, agreed that the trial Ii-"dIq"uMhed
should be postponed. At the Trinity Sessions the same cause still existed
to make it inconvenient for the attorneys to attend, and no notice of trial was
given. At these last sessions certain new rules were made, whereby it was
provided that the traverses should be taken at an early period of the sessions.
Eight days before the Michaelmas Sessions, 1835,. the . defendant gave
notice of trial for those sessions, which notice was not countermanded, nor
was any intimation given that a certiorari had been sued out. The affidavits
for the defendant stated, that he attended for the purpose of trying the
traverse, and had subpoenaed his witnesses for that purpose, but that the
traverse was, notwithstanding the new rules, postponed till the end of the
sessions, when the leading barristers and many of the magistrates had lef^,
and when a magistrate, said to be interested, was upon the bench, and that
the defendant believing that he could not on such occasion have a fair and
impartial trial, then produced his writ of certiorari,
Talfourd, Serjt. and Kelly, now shewed cause (6). — The Court has never
interfered to order the payment of costs for expenses incurred before the
cause came into this Court. The Court of Quarter Sessions have power
over the costs ; they can, if they think proper, cause the recognisances to be
forfeited, and this Court will not interfere with their jurisdiction.
Maule and Greaves, in support of the rule. — [Lord Denman, C. J. — Do you
think that you can maintain your prayer for costs ?] — There is no doubt of it,
as to all costs incurred afler granting the certiorari, and during the time when
the defendant kept it without giving any notice of having it. The costs
having been incurred in consequence of the defendant's conduct in abuse of
the certiorari, the prosecutor is therefore entitled to them. Jones v. Da-
(6) The Court made the rule absolute for quashing the eeniorari, and awarding a procedendo
on the merits.
398
TERM llEPORTS in thb KING'S BENCH.
The Kino
v.
Richard
HlOGINS.
King*t Bench, vies (a), Sioceif V. Evans {b\ Rex v. Allen (c), and Rex v. Bartram{d)f are also
in point. The latter was an indictment for perjury, removed by cerliorari^
and the Court decided that if a prosecutor gives notice of trial, and after-
wards withdraws his record without countermanding his notice in time, he
shall pay the costs. That case also shews that the Court possesses an inhe-
rent authority to award costs under such circumstances, independent of any
statutory enactment, for there is no statute giving the Court authority in
cases of perjury. The only question is, when the certiorari attaches ; and as
the sessions are all reckoned as one day, the date will be from the first day
of sessions. The circumstances oi Rex v. Pasman (e) differ from the present.
There the certiorari was not taken out by the party who gave notice of trial.
Lord Denman, C. J. — Stacey v. Ei>ans proceeded on the authority of
Jones v. DavieSf which is impugned in Rex v. Pasman. We do not find
that this Court has any power to grant costs which have been incurred in
another Court.
Patteson^ J. Williams, J« and Coleridge, J. concurred.
Rule absolute for the certiorari to be quashed, and a
procedendo awarded, but discharged as to costs.
(a) 1 B. & C. 143.
(fc) 13 Price, 449.
(c) I Comb. 225.
(d) 8 East. 269.
(e) I Ad. & £1. 603.
November 1 1 th,
Prohibttiou lies to
a spiritual court
if it proceeds to
hear exceptions
to the iuventory
exhibited by an
executor, even
although tlie ex-
ceptions be filed
by a legatee.
Griffiths and others v. Anthony and Wife.
pr WILLIAMS had obtained a rule nisi to prohibit the Consistory Court
of St, David's from proceeding further in a suit between the above
parties. On an affidavit by Anthony^ shewing that he and his wife, the exe-
cutrix of her late father, were cited, at the instance of certain legatees named
in the will, to appear in the Consistory Court and exhibit an inventory of
effects, &c., that upon exceptions being filed by those legatees, answers on
oath were filed by deponent and his wife ; that the case came on for hearing
in the said Court, and that the judge proceeded to examine witnesses as to
the truth of the inventory, and of the annuity, and decreed that the inven-
tory was false and fraudulent, and was to be amended according to his mi-
nutes. The examination was conducted vivd voce by consent of defendant's
proctor, to save expense.
Chilton^ now shewed cause. — It is admitted that Henderson v. French {/),
is a decisive authority on the other side, unless the constant practice existing
in the Spiritual Courts to entertain objection to inventories, as stated in
Williams on Executors, 606, be recognised by this Court. In Hinton v. Par-
ker (g), it was held, that where the proceedings were at the suit of legatees,
as in this case, the Spiritual Courts had the power to question an inventory.
The irregularity, if any, has been waived by the defendants having asked to
amend their inventory, which was allowed on payment of costs.
(/) 5 M. & Selw. 406.
is) 8 Mod. 168^
MICHAELMAS TERM, 1836. 399
Lord Denman, C. J. — Henderson v. French is a case quite in point, and King** Bench,
not to be questioned. I can see no distinction in principle between the case w^v^w
of a legatee and a creditor. Griffiths
and others
V.
Patteson, J. referred to Catchside v. Ovington (0), and Bewicke v. Ord, Anthony
there cited. ^^ ^'i'^e.
Williams, J. and Coleridge, J. concurred.
V. miliams was to have supported the rule.
Rule absolute.
(a) 3 Burr. 1922.
The King v. Chitty.
November II th,
j^IR J. CAMPBELL, A. G., in Hilary Term last, obtained a rule calling on Thesutate5&6
Philip Chitty to shew cause why an information in the nature of a quo ^^t\c\ll\co^
•warranto should not be exhibited against him, to shew by what authority he ^t^on Act) does
exercised the office of councillor in the borough of Shaftethury. The affida- ^cenSS *"*
vits shewed, that at the time of his election to that office, he was an uncerti- i>«nkrupt from
ficated bankrupt ; that he had been duly rated, and had paid rates in respect majo^ a'iderman,
of a house of the value of 80/., and that his name was on the burgess roll. orcounciUor.
Erie and Binghaniy now shewed cause. — The question is, whether or not
the circumstance that the defendant was an uncertificated bankrupt, disqua-
lified him from being elected. There are two sections of the Municipal Cor-
poration Act material to be considered in this case, the S8th and the 5Snd,
the one determining those circumstances which qualify a person to be elected,
and also those which disqualify him ; the other those which cause him to
vacate the office afler he has been elected. In the 52nd section, there is a
provision that any person becoming bankrupt shall vacate the office, and
shall not be capable of re-election until afler he has obtained his certificate,
or paid his creditors in full. The 28th provides that no person shall be
qualified to be elected, unless, in the larger boroughs, he is possessed of pro-
perty to the amount of 1000/., or rated to the relief of the poor upon the
annual value of SO/. ; in the smaller boroughs, of property to the amount of
500/., or rated upon the annual value of 15/. There is nothing in the act to
shew that uncertificated bankruptcy disqualifies a party from being elected,
although it vacates his election if it occurs afler it. And there is good
reason for this distinction^ because bankruptcy may proceed from misfor-
tunes, attaching no blame to the party, or a certificate may be maliciously
withheld ; and the burgesses, knowing all the circumstances, may still think
proper to entrust the party so situated. On the other hand, the election is
properly vacated when such circumstances occur subsequent to the election.
There the party was elected, appearing and believed to be otherwise than he
really was. Such election, therefore, has been procured under mistake, or
by fraud, and the act provides, that the office so attained shall be vacated
on the discovery. Here there waa a fbll knowledge of all the circumstances
\
400 TERM REPORTS in the KING'S BENCH.
King's Bench, beforehand. If the construction contended for on the other side be correct,
v^/^/ any one who has become insolvent is disquah'fied from being elected. Or,
The King jf a man in his youth liad compounded with his creditors, he might remain
Ciiirrv. disqualified throughout his life, whatever wealth he might afterwards obtain.
Such a case as the present is neither within the letter nor the spirit of the
act, the object of which is to enlarge the power of election. An analogy
exists between the rules for municipal and parliamentary elections ; many
persons are eligible as members of parliament under circumstances, which
same circumstances occurring afterwards, would vacate the election. A
law officer of the crown, the Attorney-General, for instance, is eligible ;
but if a person elected a member of parliament be appointed Attorney-Ge-
neral, the appointment vacates his election, and his former constituents
have an opportunity, of which they may avail themselves, if they please, to
reject him.
Sir /. Campbellf A. G. conird. — It has been argued on behalf of the de-
fendant, that the only object of the legislature in assigning the grounds for
disqualification, is to prevent the electors from being deceived as to the cha-
racter and circumstances of the person whom they elect. But this is not so.
The legislature says, that persons so disqualified shall not serve, llie
52nd section, after providing that any person holding the office of mayor,
alderman, or councillor, becoming bankrupt, insolvent, or compounding with
his creditors, shall become disqualified and cease to hold his office ; enacts
also, that he shall be qualified to be re-elected, only upon the obtaining of
his certificate, or payment of his debts in full. In the 28th section the
rating which is to serve as a qualification, was meant to refer to actual pro-
perty, an uncertificated bankrupt has no actual property. That section cer-
tainly does not say in express words, that an uncertificated bankrupt shall
not be elected ; but it says so virtually. It requires, as a qualification, the
possession of property to a certain amount ; or a rating, which must refer to
the possession of actual property. The legislature therefore knowing that
an uncertificated bankrupt was by these provisions virtually excluded, that
the end was already attained by other means, did not re-enact the same pro-
vision in other terms. That would have been needless, and mere tautology.
However, even if the Court should only feel doubt on the subject, tliey will
make this rule absolute.
Lord Denman, C. J. — I agree with the Attorney-General, that if there is any
doubt, the matter ought to be more fully and solemnly considered ; but I do
not think that there is any doubt. We arc bound to confine ourselves to the
words actually used. We should not be justified in raising the question, for
the purpose of considering whether or not an intention to disqualify might
be implied from inference of law. We must adhere to the express terms by
which the act of parliament directs that parties shall be disqualified. This
person does not come within any of them. It has been ingeniously argued,
that a house must be considered to mean a house being the property of the
party. But it is quite enough to abide by the words of the act, they only re-
quire a party to be rated to the relief of the poor, in respect to property of a
certain value. Now if this party is rated to the relief of the poor on a house
of the value required by the act, he is therefore qualified. A strong infer-
MICHAELMAS TERM, 1836.
ence may be drawn from the 52nd section, as shewing the intention of the
legislature to disqualify the persons mentioned, from being elected ; but it
certainly admits of the answer given, that the enactment applies only to a
change of circumstances occurring after the election. It may be said, that
in such case it is very reasonable that the electors should have a fresh oppor-
tunity of exercising their judgment. But no such reason exists to disqualify
a person from being elected. The electors, when all the circumstances are
known before the election, need no further protection ; and besides, at all
events, if the intention of the legislature was, that those circumstances which
vacate the election of a party, also render him ineligible, that intention might
have been declared in the 28th section, where the original election is consi-
dered ; but it is not so declared, and therefore I am of opinion, that this
person is not disqualified by any of the provisions of the act.
Patteson, J. — I am entirely of the same opinion. The Attorney-General
contends for the following construction of the statute. Since it is enacted that
all persons must possess a qualification by being rated to the relief of the poor,
and no person can be rated unless in respect of some property belonging to
them ; therefore an uncertificated bankrupt having no property, cannot be
rated at all within the meaning of the act. I do not see that that follows, but
if it does, it must follow also that no uncertificated bankrupt can be a burgess ;
however, by the 1 1th section it is said, that every person occupying a house has
a right to be on the rate for the purpose of becoming a burgess, and this clause
does not say how or in what right he must occupy, for the purpose of such
qualification. Suppose the assignees of an uncertificated bankrupt, who had
a lease of a house, should make their election and reject the lease under
which he holds, the lessor of the bankrupt then might enter ; but if, instead
of entering himself, he were to allow the bankrupt to hold on, such bankrupt
would then be holding property from which the assignees could not remove
him, and might thereby be qualified to be a burgess. I think also, that by
the direct words of the 52nd section, the disqualification is confined to a
person becoming bankrupt afVer election.
Williams, J. — I am of the same opinion.
Coleridge, J.-*-I am of the same opinion. I do not see that you are at
liberty to extend by implication^ the express words of the clauses creating a
disqualification.
Rule discharged.
401
King*i Bench,
The Kino
V,
Chittv.
The King v. Bardell and others.
NooemUr lUh,
fTUMFREY, in Hilary Term, had obtained a rule calling upon the prose- Thesutatet
cutors in this case, and on the arbitrator to whom all matters in dif- Jnds^&^i'i?'/^'
ferences between the parties were referred by an order of Nisi Prius^ to c 4«, «• to refer-
shew cause why the arbitrator should not be restrained from further pro- SooTiippi'j to cirii
ceeding in the said reference, on the ground that his authority had been re- prooeediugs only.
voked ; or why the defendants should not be at liberty now to revoke his th« vh lection or
the latter act, a
part J to • re fiereiice of a crUBinal proceeding, is not rettnuocd from rfToking the aotliorllj of the arbitrator.
VOL. II. D D
402
TERM REPORTS in the KING'S BENCH.
The Kino
r.
Baroell
and others.
King*s Bench, authority. A true bill of indictment, for a conspiracy, was found against the
defendants at the Middlesex Sessions, September, 1833; a certiorari was ob-
tained, the indictment removed, and the record made up by the defendants.
The cause came on for trial at Westminster , at the sittings after Easter Term,
ISd^, before Lord Denman, C. J., and at the suggestion of his lordship a
juror was withdrawn, and all matters in differences between the parties were
referred to a barrister. The order of Nisi Prius for the reference was drawn
up in the usual form, and served by the prosecutor's attorney, but no ap-
pointment was taken out until the 10th December last, being a year and seven
months after the date of it. An arrangement had been in the meantime
entered into between one of the prosecutors and some of the defendants, to
leave the matters in dispute to George Cloud and George Little, who made an
award, November 10, 1834, which was partially acted on ; but afterwards the
appointment was taken out and duly served to attend the arbitrator on the
9th oi January last. The defendants, by their counsel, on that day opposed
going into a reference, and a notice of revocation was then signed by one of
the defendants, and by two attorneys on behalf of all the other defendants ;
it was also served on the arbitrator, who subsequently intimated that the
better course would be for the defendants to apply to this Court. The
only question for the opinion of the Court was, whether or not the words of
3 & 4 Will, 4, c. 42, s. 39 {a), are applicable to other than civil proceedings,
BofnpaSf Serjt. and Phtt, shewed cause.
Sir /. Campbell, A. G. Humfrey, and Knowles, contri.
Lord Denman, C. J. — We are clearly of opinion that a reference of cri-
minal proceedings is not within the act. Parties cannot be deprived of the
right they possess at common law to revoke the authority o£ an arbitrator,
except by a distinct enactment. Now the words of the statute refer to two
distinct, specific, and perfectly different state of things, but (perhaps unfortu-
nately) they do not apply to indictments. They apply only where there has
been a reference either by order of Nisi Prius, or in consequence of an agree-
ment between the parties. It is true that here there has been a reference by
order of Nisi Prius, but not in the case of a civil action, to which case alone
the words of the statute apply. The subsequent words of the clause, con-
cerning references by agreement between the parties, are obviously restrained
to civil matters only, and therefore inapplicable on the present occasion.
Patteson, J. — I never had the slightest doubt upon the point. The 39th
(a) That enactment if as follows : —
" And whereas it is expedient to render re*
ferences to arbitration more efTeciual ; be it
further enacted, Ihat the power and authority
of any arbitrator or umpire, appointed by or
in pursuance of any rule of Court, or judge's
order, or order of iVtxt Prius, in any action now
* brought, or which shall be hereafter brought,
or by or in pursuance of any submission to
reference, containing an agreement that such
submission shall be made a role of any of his
Majesty's Courts of Record, shall not be
leyocable by any party to such reference,
without the leave of the Court by which such
rule or order shall be made, or which shall be
mentioned in such submission, or by leave of
a judge; and the arbitrator or umpire shall
and may and is hereby required to proceed
with the reference notwiihstandine any such
revocation, and to make such award, altnough
the person making such revocation shiU not
afterwards attend.the reference ; and that the
Court or any judge thereof may, from time to
time, enlarge the term for any such arbitrator
making his award."
«
MICHAELMAS TERM, 1836.
403
The Kino
V.
Bahdill
and others.
section of the d & 4 Will, 4, is plainly drawn ; it applies to civil proceedings KiHg*t Bench,
only, not indictments. The whole act of parliament refers to actions and
other proceedings in civil cases only. It first provides for the case of a re-
ference where there is an action pending in Court, and it goes on to provide
for the case of a submission containing an agreement ; plainly pointing to the
words of the statute of 9 & 10 JVUL 3. That statute is confined to cases of
personal actions, or suits in equity. It is stated in a note by Mr. Chitti/ (a),
that certain criminal offences, even afler they have been made the subject of
indictment, may, under that statute, by leave of the Court, be referred. But
the fact is not so, the reference of an indictment remains as at common law.
In all respects the statute 9 & 10 IVilL 3, is confined in terms to cases where
the remedy is by personal action, or suit in equity.
Williams, J. — I am of the same opinion. I do not think that there is
any doubt on the subject. It is not material to the decision of the case, but
I own I question whether a reference of criminal proceedings was ever con-
templated as a case that would occur. However, it is beyond all question
either that the act was not intended to extend to such a case, or if intended,
that the intention was never carried into effect.
Coleridge, J. — I think it is clear, upon reading the act 3 & 4 JVill, 4,
c. 42, s. 39, that provision is made first for the cases referable at common
law before the statute of JVilL 3, and next for those made referable by that
statute, and for those only. The present case belongs to neither of those
classes.
Rule discharged (6).
(a) 1 Chit. Stat. 33.
(b) The Court diiM:barged the rule, on the
ground that they had no authority to inter*
fere.
The King v. White.
November llth*
SIR /r. W. FOLLETT in HUaru Term obtained a rule calling upon the An informatiou
_ 1 ' /* ... n in Uie n^iture of a
defendant to shew cause why an mformation m the nature of a quo war^ fuouanantoVmikt
ranto should not be exhibited acrainst him, to shew by what authority he thein»uuceofa
, , !/• pnvate relator
claimed to be mayor of the borough of Sunderland ; on the grounds, first, agaiostiodividuais
that George Stephenson, who made out the burgess lists, was not town clerk ^'^"orMratton!"
of the borough, nor any person performing duties similar to those of the although the am-
town clerk ; secondly, that tlie election of councillors of the said borough inVfounded go to
was held before Richard Spoor, who was not mayor nor chief oflScer of the »h«w that no such
borough. The affidavits shewed that no royal charter was ever granted to ev^Histed.'"
Sunderland : that between the twelfth and the sixteenth century it received in schedule a,
several charters from the Bishops of Durham, who enjoy jura regalia within sufuUrUmd ismet^
the county palatine : that the last charter was granted by Bishop Morten, in ^«»"«** ■*?*»••
, , «^, , , 1 ,. 1 .111 11 sewing a public
the tenth year of Charles 1, but that this, together with all the others, was corporation, for
forfeited by disuse : that for centuries there has been no corporation exer- ^i^^****^\oL**^
cising any municipal rule or corporate power within the town ; nor within are made by the
act. 'i1ie Court
mlule a rule absolute for an Infbrmation in the nature of a fM wmrmmlo, at the instance of a private relator,
against a party acting as mayor nndrr those provisions, although the affidavits in support of the rule itent
to shew that Sunderlmd did not possess a public corporaiion M Uie time of paMiog the act, and therefore
that its provltioDs could oot ftpply.
J>J>2
41^
404 TERM REPORTS in thb KING'S BENCH.
King's Bmeh. the memory of the inhabitants any mayor, alderman, town clerk, or person
^■^v^i/ exercising similar functions : that in the case of Hicks v. Clerk (a), it was
The Kino [jg^ jjy ^jjg Court of Kings Benchy that Sunderland was an ancient borough
'Whitx. consisting of twelve capital burgesses called freemen, and twelve inferior
burgesses called stallengers, and that a custom was established in favour of
such freemen and their widows, but that no such custom has ever been
claimed : that there has been for a number of years a body of persons
claiming to be a private corporation, under the name of " The Freemen
(twelve in number) and Stallengers (eighteen in number) of Sunderland^**
and to be possessed of a large common called The Town Moor^ as part of
their corporate property : that the right of election has been in the freemen
only : that there also have been a clerk and a solicitor attached to the body :
that this body never had a charter granted to it, nor has it any connection in
name, constitution, or privileges, with any of the ancient charters granted to
Sunderland : that it claims its corporate name and property entirely upon pre-
scription : that until within the last twenty or thirty years the body was not
filled up in regular succession : that it never claimed to be any thing more
than a private corporation for preserving the succession to this property :
that the town, moor, and ports adjacent, are all within the parish of Sum-
derland, which parish does not comprise more than one-third of the par-
liamentary boundaries of the borough of Sunderland, under the Reform Bill
Boundaries Act, 2 & 3 Will, 4, c. 64 : that this body has never exercised nor
claimed any municipal rights, nor any rule nor government over the town :
that in 1 829 a quo warranto was applied for against the freemen and stal-
lengers, to shew by what authority they claimed to be a corporation (6)« to
which the afHdavits filed in answer state, that '' the said freemen and stal-
lengers have never interfered^ nor is it their corporate duty to interfere in or
with the rule or government of the town or borough of Sunderland^ nor have
they exercised or enjoyed, nor claimed to exercise or enjoy, nor do they
exercise or enjoy, nor claim to exercise or enjoy, any corporate or other
powers, authorities, privileges, or jurisdictions whatsoever within the same
town over the rest of the inhabitants, except such control as they possess
over such of them as are members or officers of the corporation :*' that the
Court decided, that as the freemen and stallengers were only a private cor-
poration, and did not exercise any rule or government over the town, and
were in no way connected with public government, an information could be
brought only by and in the name of the Attorney-General, and therefore dis-
charged the rule : that by the Municipal Reform Act, 5 & 6 Will. 4, c. 76, Sun*
derland was included in Schedule (A), and that the revising barristers divided
the town into wards : that the clerk of the freemen and stallengers was
applied to to act as town clerk, which he refused to do ; upon which Mr.
George Stephenson, the clerk to the magistrates, (described by the afHdavits
against the rule as clerk to the corporation,) on the suggestion of the re-
vising barristers, took upon himself to act as town clerk : that the lists were
duly published and the burgess roll completed : that a requisition, signed by
about one-fourth of the burgesses, was presented to Bernard Ogdcn, the senior
freeman, requesting him to act as chief officer, which he declined ; and that
the two freemen next in seniority also declined, on the ground that tbey bad
(a) 2 Lev. 252. (6) Rtx v. Ogdm, 10 B. & C. 230.
MICHAELMAS TERM, 1836.
405
The Kino
White.
no authority to act : that the requisitionists then applied to Richard Spoor, King's Bench.
the freeman next in seniority, who assumed the office, against the wish of
the other freemen and stallengers, and held the election of councillors, alder-
men, and mayor, according to the provisions of the Municipal Reform Act,
and that on such election, the defendant, Andrew fVhite, was elected mayor :
that Mr. Spoor was one of tlie freemen who, on the occasion of the applica-
tion in 1829, was a party to the affidavit before mentioned.
Sir /, Campbell, A. G., and Wighiman, now shewed cause. — The party
making this application (a private relator) says virtually that there is no
corporation in Sunderland. The objection that he makes to the election of
Mr. White is, that the person who acted as mayor could not so act, and that
there was no one who could, and that there was no one who could act as
town clerk. This objection being against every individual in the corpo-
ration, it falls within the rule founded on 9 Ann. c. 20, s. 4, that a private
relator cannot appear to deiiy the existence of the whole body ; Rex v. Car-
rnarlhen (a). Rex v. Ogden(Jb). The objections here are not to the mode of
carrying on the election ; they are directed against its being carried on at
all. Rex V. Ogden shews that the relator is not in a better condition in
applying against two or three of a corporation, which he says does not exist,
than in applying against the whole of such body. This Court will in no case
listen to an application of quo warranto by a private relator, which goes to
shew that no corporation is in existence. It is only where a corporation can
be rectified that this Court will entertain the application ; if the corporation
is extinguished, it is the duty of the king's executive government to inter-
fere by the Attorney-General.
Sir fV. JV. FolUtt, contrd. — The objection against Mr. !Vhite*s filling the
office of mayor is, that the machinery required by the Municipal Act did not
exist on the occasion of his election. Still it would be difficult to maintain
that Sunderland is not a borough, since it is ranked as such in the act ; and
as no subsequent act relating to Sunderland has passed, we must proceed
under the present one. Now the act says Sunderland shall have a mayor ;
therefore, if a person is found acting as such who has no right, the present is
the proper application to make. Rex v. Carmarthen (a) shews that such an
application will not be entertained against the whole of a corporation as a
body ; but the same case also shews that the same parties, immediately
afterwards, altered their general motion into motions against the several
individuals, and obtained their rules. In Rex v. Ogden (6), the applica-
tion was not against an individual, it was against a number of persons,
calling on them to shew by what right they claimed to act as a corporate
body. That body was of a private nature. The application, therefore, was
quite difierent from the present, which is against an individual exercising an
office in a public body ; and there the same Mr. Spoor, who acted as chief
officer on the occasion of the present elections, made affidavit that the cor*
poration was quite a private affair, not interfering in any way with public
matters, and never having done any thing but manage their own concerns. It
is perfectly clear that the legislature never intended to insert Sunderland, or
places similarly circumstanced, in the act. It was put into the act by mistakci
(o) 3 Burr. 869, and 1 W. Bla. 187.
(ft) 10 Bi & C, %30i
The Kino
406 TERM REPORTS ik the KING'S BENCH.
King*i Bench, but being there, we must see whether what the act requires to be done was
done, in order to entitle the defendant to hold the office of mayor. If that
was not done, no matter for what reason, whether because it was impossible.
White. or for any other reason, he has no title to the office.
Lord Denmak, C. J.— It appears to me that the case of Rex v. Ogden (a)
is satisfactorily distinguishable from this. The Court there, with good reason,
said that they would not allow an individual to file an information against the
members of a corporation whose existence he denied. The Court would not
permit a private relator to do that which they said, if proper to be done at
all, was the duty of the king's Attorney-General. In Rexv. Carmarthen (6),
it appears that a quo warranto did issue against the individuals, ahhough the
Court would not grant one against the whole body of the corporation. Now
here the application is as against an individual; therefore the rule acted
upon on the former occasion does not apply. With regard to all the facts,
whatever we may think of the result, there is doubt enough to make it fit
that the question should undergo the consideration of a jury, and therefore
the rule must be made absolute.
Pattebon, J. — The case of Rex v. Ogden (a) is distinguishable in the way
that has been stated. The motion there was not against all the body ; it was
against five only ; but it was for a rule calling upon them to shew cause why
a quo warranto should not issue against them for acting as a corporation at
all ; and that was met by their statement, that they had not claimed at any
time to exercise any government or municipal authority of any kind or sort.
In this case it really comes to the question, whether the circumstance that
every one of the supposed members of this corporation being in a similar
predicament with the person against whom the motion is now made, (ad-
mitting that we know that to be so distinctly on the affidavits,) is a suffi-
cient ground for refusing the quo warranto. I do not think we can say that
it is. The application is against an individual^ and this ground for refusing
it is not one which applies to this individual especially or directly. What
may turn out to be the facts I do not pretend to know.
Williams, J. — In all cases where there must be an election, not by a
majority, but by distinct integral portions of a corporation, there, if any of
the integral parts of a corporation is lost, the corporation is lost. There-
fore an objection taken against such integral part affects the existence of the
whole corporation, yet a quo warranto has repeatedly gone where the objec-
tions have been of that description.
Coleridge, J. — I am of the same opinion.
Rule absolute.
(a) 10 B. & C. 230. {h) 2 Burr. 869 j 1 W. Bla. 187.
MICHAELMAS TERM, 1836. 407
Kmg*i Bench.
The King v. The Justices of Middlesex. ^^^
November IZth,
W/^IGHTMAN, in Easter Term last, had obtained a rule calling upon j, '^^ere an
the Justices of Middlesex to shew cause why a writ of certiorari should "«* «f pwiiament
not issue, to remove a certain order made by them at a special sessions, for to mSte^oMdei!
diverting, turning, and stopping vp a certain footway, &c. &c., and also an but provided that
order of the general quarter sessions confirming the first-mentioned order, have no effect an-
The order of special sessions was made on the 3rd of Avgust^ 1835 ; it was ^" iti»»d been
appealed against, and confirmed by an order of quarter sessions, on the 19th roiled by the sca-
of October, 1835. On the 29th of December, 1 885, a certificate was made by fj!*".'^^'*'' ****'
. . •^ the ux months
two justices that the new footway was complete on the 4th oi January, 1836 ; within which, un-
the certificate was inroUed by the Court of Quarter Sessions. The motion a*^]l^Vii/'
for the rule nisi was made on the 15th o( April, 1836. move it must be
applied for, do not
begin to run until
Sir «/. Campbell, A.G. and J, Greenwood, now shewed cause. — By 13G.2, tiie order has been
c. 1 8, s. 5, it is enacted, that no certiorari shall be granted to remove any roiled,
conviction, judgment, order, or other proceedings of any justice, &c., unless ^^^^^^o,\
such certiorari shall be applied for within six months next after such convic- sion and tha
tion, judgment^ order, or other proceedings shall have been had or made. *„bnJ°foot^^*
Now here the order complained of was made at the special sessions; it is not must each of them
the confirmation of the order which is complained of. The original order is i*l,liti„c"t*'ir?cr^^
the grievance, if any. The present application is therefore too late, more and one order pur-
than six months having elapsed since the special sessions were held ; Rex v. fo/uwf diversion *
Bovghey (a). Next as to the order itself. If there be no valid objection •»<* stopping up,
against that, the Court will not grant the certiorari. The objection is, that
there is a joint order for diverting and stopping. It is said that there must
be two, one for diverting, the other for stopping. It must be admitted, that
it is laid down by Lord Tenter den, that two orders are necessary ; Rex v.
Justices of Kent (6) ; if, indeed, he used the language there attributed to him.
But if he did, he must have been ignorant of the words of the statute 55
G, 3, c. 68, for both the enacting clause and the form given in the schedule
shew that one order is sufficient. The words are, " it may be lawfid, by order
of such justices at some special sessions, to direct, and to turn, and to stop up
such footway," &c.; and by s. 4, it is only enacted, that the part of the order
relative to stopping up shall not be effective till a certificate has been in-*
rolled of the new road having been made. The distinction is, that the order
for stopping, and the actual stopping up, must be not synchronous but by
sequence of proceedings. After inrolment of the certificate, all the parts of
the order are to be enforced. And s. 3 shews that this is so ; for there an ap«
peal is given where any person feels aggrieved by such footway being stopped
up and inclosed, and a new highway being appropriated. Now there can be
no grievance in the appropriation of a new highway. Therefore it is cleat
that the act contemplated that one order should embrace both the diverting
and the stopping up. This absurdity also would occur if it were necessary
to have two orders ; that a man might go to great expense in making a new
road, and then fail in obtaining an order to stop up the old one. The direc'^
tion in the schedule also giving the form is '< if the order be
(«) 4 T. R. 281. (6) 10 B. & C. 477*
408 TERM REPORTS in the KING'S BENCH.
King't Bench, for iuming, dtvcrtmg, and stopping up^ &c., here so state it, and describe the
^'^^'^ road ordered to be turned, diverted, and stopped up" clearly shewing that one
®^/^° order only was contemplated. The statute 13 G. 3, c. 78, s. 19, also speaks
The Justices of of the order to divert, turn, and stop up.
MiDDLSSEX.
Whiteman, contrd, — As to the first point, that this application is too late.
Rex V. Sheppard (n), recognised in Rex v. Justices of Kent (6), shews clearly
that it is not. As to the second, the words used by Lord Tenterden in the
latter case are express, that two orders are necessary. The preamble to
55 G, 3, repealing part of 13 G. 3, recites, that it is expedient that more
public notice should be given of any order for diverting, turning, stopping
up, and inclosing any highway, &c. It also re-enacts many of the provisions of
the latter statutes. In interpreting these enactments, the 13th G, 3, is to be
considered as forming part of the 55 G, 3, as appears from Lord Tenterden^s
judgment in Rex v. Justices of Worcestershire (c). The 55 G. 3, says, that high-
ways may be diverted and stopped, subject to such restrictions as are enacted
in the 1 3 G. 3, with respect to the widening or diverting highways. To this
statute, therefore, we must look, and it contains, as Lord Tenterden expressly
says, no form for a double order. Moreover, the object of the 55 G. 3, was
to increase the facilities for appeal and give more public notice. These
objects no doubt are better consulted by the employment of two orders than
only one. The 55 G. 3, gives no form of order, only a form of notice, and
the words there used are the same as those of the enacting part ; and for the
interpretation of these last we must look to 13 G. 3, and that statute leads us
to suppose that two orders are necessary, which construction is also dictated
by public convenience.
Lord Denman, C. J. — The first objection as to the time appears to be
disposed of by a great variety of cases under various acts of parliament, all
referring to the 13 G. 3, and they clearly establish that the period from which
the six months are to be calculated, is the time when the sessions confirm the
order, not the time when the justices make it. Therefore this applica-
tion was sufficiently early. On the second point great doubt may be raised
as to the intention of the legislature, but when we refer to the act of parlia-
ment, I believe that doubt will be removed. The 55 G, 3, c. 68, s. 2, pro-
vides for the case. It enacts, that when it shall appear upon the view of any
two justices, that any public highway may be diverted so as to make the
same nearer or more commodious to the public, and the owner of the lands
through which it is to pass shall consent thereto, it shall be lawful, by order
of such justices at some special sessions, to divert, turn, and stop up such old
highway ; and that they are to do by such and the same ways and means,
and subject to such conditions in all respects as in the said recited act is
mentioned in regard to highways to be widened and diverted. The act
recited is the 13 G. 3, c. 78, and we therefore turn to that in order to see bow
this is to be done. The provisions we find in the 19th section, and in
the schedules forms are supplied, one for widening and diverting or turning
a way, the other for stopping up. But there is nothing to lead us to suppose
that these two acts may be done by one instrument. There is a provision in
(a) 3 B. & A. 414. (h) 10 B. U C. 477. (c) 2 B. & A. Sas.
MICHAELMAS TERM, 1836. 409
55 G. 3, preventing the inclosure of the old road before a certificate has been King't Bench.
obtained of the completion of the new one, but there is no substitution of v^^/^/
any one order for two separate orders. I think, therefore, that the ways and "1**® ^^^^
means to be used must be taken to consist of one order for turning and j^g justices of
diverting the old road, and another for stopping up. If there were any Middlesex.
doubt, for certainly there is great variety and some confusion in the provi-
sions, I think the authority of Lord Tenterdenf which is always entitled to
very great weight, ought to prevail. This opinion is expressly given in Rex
V. The Justices of Kent, that the order in that case was bad, inasmuch as the
justices had attempted to do by one instrument, that for which the act ^
required two. I am therefore of opinion that this rule must be made ab-
solute.
Patteson, J. — With respect to the first question, I think that the certiorari
having been moved for within six months after the confirmation of the ori-
ginal order, the application was early enough ; for, if not, the party would
often be deprived of one of those two remedies, one of appeal to the sessions,
the other by certiorari, to which, by law, he is entitled. If he were obliged
to remove the orders made by the justices within six months after they are
made, it might happen that he would lose his right of appeal before the case
came on in this Court. Although there is no direct authority upon this point,
yet there is what amounts to the same thing. In Rex v. Sheppard the date
of the original order was more than six months before the certiorari was
moved for ; and although that circumstance does not appear to have been re-
ferred to, yet we must presume that it was in the consideration of the Court.
With respect to the second question, I myself should have thought one order
sufficient, because the act says it shall be lawful, by order of such justices, &c.
to divert, turn, and stop up, &c., but it also says, that every thing is to be
done by the same ways and means, and subject to the same exceptions and
conditions as in the recited act mentioned with regard to highways to be
widened or diverted. That act is IS G. 3, c. 78. Now the 19th section
has precisely the same words as the 55 G. 3, relative to not stopping up an
old way until the new one is made, and a certificate of two justices to that
effect has been obtained. I do not know that there is any express direction
that there should be two orders, but on turning to the schedule it is plain
that two orders were meant to be used. The forms there given shew that
two orders are requisite; and as the words used in the 19th section of 13
G. 3, are the same as the words used in this act, and as the forms given in 13
Geo. 3, shew that the words of 13 Geo, 3, must be interpreted to require two
orders, therefore we must suppose that two orders are required here. If
there was any doubt, the opinion of Lord Tcnterden would remove it.
Williams, J. — I am of the same opinion ; and with regard to the cer*
tiorari I shall say nothing. As to the point whether or not one order be
sufficient, it is not disputed but that, according to the schedule referred to,
two orders were necessary. The question depends now on whether or not
the 55 Geo. 3, has in fact repealed the old Highway Act, 13 Geo, 3, so far
as regards the necessity for two orders. I own, that had this been free from
previous authority, I might have doubted. I find, however, that the case
has been decided before, and not merely by Lord Tcnterden ; there is also a
410 TERM REPORTS iK thb KINO'S BENCH.
Kin^iBmek. remark by my brother IMtUdak^ which shews that he took the same view of
W\^^ the case. I think, therefore, that unless we were perfectly clear that the
The Kino decision in Rex v. Tht Justices of Kent was wrong, we ought to abide by and
TheJ«Uc«.of »»PP««it-
MiDDLIBlZ.
Coleridge, J. — With respect to the first point, I know of no express
decision ; but it seems to have been assumed in Rex v. Justices of Sussex (a).
I myself feel no doubt upon it. The latter order is certainly within the six
months ; the certiorari clearly therefore is not taken away with respect to it.
^But it is said, that as the former proceeding is beyond six months, the latter,
rhich is only a continuation of it, has now become irremoveable. However
that might be, supposing the first order could ever of itself have become
conclusive, the reasoning cannot apply in the present case. Here the first
order is merely a preliminary, and has of itself no force until inrolled and
made an order of sessions. It is therefore by the act of the quarter ses-
sions alone that the former order becomes effective. With respect to the
second point, I have had great doubt, and if I had referred only to the later
statute, 55 Geo. 3, I should have thought that the machinery would have
worked better if the justices were to consider the propriety of diverting
and stopping up the old road at one and the same time, or to make one and
the same order for both purposes. With regard to the diversion, no one
would think it necessary to appeal against that, because it only could be
made by consent of the owners. I should have thought, therefore, one order
sufficient. It should rather seem, from the sections to which our attention
has been drawn, that one order only was contemplated, directing the diversion
and stopping up, the execution of which was to be suspended until the cer-
tificate of the two magistrates that the new road is in a fit state for the public
to use had been obtained. That provision I can understand if one ordfer
only were required, but not if it be necessary to go again before two magis-
trates, and from them to the sessions, for another order to stop up. How-
ever^ I do not think we are at liberty to construe the act by consideration of
itself only, because we are tied up by references to 1 3 Geo, 3, and the same
ways and means are to be adopted as are there provided ; these have been
pointed out already by my brother Patteson^ and I entirely assent to what
he has said. Moreover, when I recollect that this point has been already
under the consideration of the Court, and that Lord Tenterden then pro-
nounced his opinion upon it, —a judge, the peculiar quality of whose mind
was its extreme accuracy,— I think that even if we felt more doubt on the
subject than we do, we ought to bow to his decision.
Rule absolute.
(«) 1 M. & S. 734.
MICHAELMAS TERM, 18S6. 411
King's Bgnck.
Syms V. Chaplin and others. * ^^-w
November 15th.
j^SSUMPSIT, The declaration stated that the plaintiff delivered a parcel i- a purei ui.
of great value to the defendants, being common carriers, to be con- ^^ delivered by
veyed from Mdkiham to London and delivered there; in consideration the pUtDtiff to a
whereof, and of certain reward, defendants undertook, &c. Breach, &c, jord; uo direc.
First plea, nan assumpsit ; second, that the plaintiff did not deliver modo ei ^P" ^''« R'^**"
forma; upon both which issue was joined; third, that the parcel was deli- modeofcoovey-
vered after the passing of statute 1 IVUL 4, c. 68, and consisted of a certain 2g2|^^'^j^^^.
writing within the meaning of that act, and above 10/. in value, and was noti^^^^Bthe
delivered at any office &c. of the defendants as common carriers, but deli- iJS^JJ,*"**
vered to and received by a certain servant of the defendants, and that no coubet were iu
declaration was made of the value or nature of the same at the time of deli- 1^® for'^Mree" to
very, nor was any increased rate of charge, as compensation for the greater b« coDveyed to
risk &c., paid or undertaken to be paid, nor did any person on behalf of the keeperdeiivered"
defendants accept any undertaking to pay the same. ReplicatioH, dc injurid, '*>« p"rc*i to the
and issue joined. At the trial before fVilliamSt J. at the last assizes for man, who paid
JViltshirCt it was proved that the parcel, directed to London, was delivered to ''''■ ^°J t»»e cw-
* . . . ri*g« fro*" Brad-
Johnson, the postmaster at Bradford. No directions were given as to the /ord to MeUthmn:
conveyance by which it was to be forwarded, nor was any declaration made —^*''» that the
as to the value. Johnson conveyed it to McUcsham, a distance of six miles, liable to the plain-
and received the payment of the carriage for that distance from Bird, who J?*^'*"]S7oMho^
keeps an inn there. Bird sent it by the defendants* coach, and received lot* of the parcel,
from the coachman the amount paid to Johnson, Bird kept one general s.Au ion where
book, in which he booked all parcels, and received the money for himself, stopsto nfceite^
The defendants* coach had for two years and a half stopped regularly at ^"^ deliver par-
BircTs for the purpose of taking in and delivering parcels. Many other ceivinghouse
coaches stopped there for the same purpose. The defendants* coach did not J^'"jJ? l***^""
change horses there. Bird had no express authority to book parcels for the riers'Act, n a. 4
defendants, and neither he nor Johnson had any notice stuck up in their 'lUioVh other*'
offices of the increased rate of charge on parcels above 10/. value, pursuant coaches stop uicre
to 11 Gfo. 4 and 1 IVUL 4, c. 68, s. 2. The parcel contained a writing, and p^J^J^teT-d .u
its value was upwards of 10/., and it was lost. The learned judge told the tiiough the inn-
jury, that if they thought Bird's was a receiving-house of the defendants, the oue^generarbook.
plea stating the delivery to a servant was not proved. Verdict for the ing-book for aii
plaintiff, with leave to move to enter a nonsuit, on the ground that it was ules^u own'^db.
immaterial whether Bird's was a receiving-house or not, since he being cretion as to the
servant to the defendants, and no notice of value proved, the plaintiflT was the parcel u sent,
not entitled to recover. ' 3. in auwnftu
against carriers for
Uie loss of a
Bompas, Seijt,, moved accordingly. — First, the house of Bird at Melk* parcel, the defence
sham was not a receiving-house within the meaning of the Carriers* ^^^eloi^not'^
Act, 11 Geo, 4 and 1 jyUL 4, c. 68. He sends by a great variety of declared at uie
coaches ; he has the full option which coach to select for the conveyance of mut be s^pecuuy
a parcel ; he keeps his own booking-book, and receives the money for pi«*^«<^*
booking, none of which is paid to the defendants ; the defendants* coach
merely stops, and nothing is paid by them to Bird for hb services. —
ICoieridge, J.— Suppose there is a house where coachet are desired to call,
is not that a receiving-house for those coaches ?]— There is no evidence of
412
TERM REPORTS m the KING'S BENCH.
King's Bench,
Syms
V.
Chaplin
and others.
any direction to call ; in order to make Bird's house a receiving-house it
should have heen proved that the defendants had authorised or arranged
with Bird to receive for them. — [Lord Denman, C. J. — He received for the
defendants when he put the parcel into their guard's hands.]— Then how
could the defendants comply with the provisions of the act of parliament ?
They would have no authority over Birds office^ nor ever any opportunity
of demanding an increased rate of charge at the time the parcel was deli-
vered. Therefore the parcel cannot be said to have been delivered at any
receiving-house of the defendants within the meaning of the act. The
second question is, whether the defendants made any contract with the plain-
tiff.— [Coleridge^ J. — You must contend that an action may be brought
against the party to whom the parcel was first delivered.] — There is no
doubt that such party is liable to an action. The contract made by the
plaintiff was with him. There was no connection between the postmaster at
Bradford and the defendants. The parcel was not particularly directed to
go by the defendants' coach ; the postmaster might have sent it by any con-
veyance that he pleased to London. When the parcel came to the hands of
Birdt he again exercised his own discretion as to the further conveyance of
it. It is impossible, therefore, to contend that there is any privity between the
plaintiff and the defendants. Lastly, by the first section of the act the value
must be declared, otherwise the responsibility of the carrier is not incurred.
The defendant may reject that part relating to the servant in the plea, and
insist upon the other, that there was no declaration of value. It is a con-
dition precedent that the value shall be declared, and therefore it becomes
immaterial whether the parcel was delivered at a receiving-house or not.
The act does not constrain carriers to take an increased charge, it only meant
that they should be informed of the increased risk that they run. Owen v.
Burnett (a) shews that the 3d section of the act refers only to cases where the
value shall have been declared. — [Coleridge^ J. — The point in Owen v. Burnett
turned upon the size of the articles.] — The plea would have been good if it
had simply stated there had been no notice of value ; it was suggested at the
trial that the allegation of the delivery to the servant was immaterial, and
might be struck out ; the learned judge said, every benefit from that shoidd
be enjoyed on the motion being made.
Lord Denmak, C. J. — Upon the point first made, as to whether this was
a receiving-house, I can have no doubt. I think the defendants have adopted
it as such from use and constant practice, and from directing their coach to
stop and call there for parcels ; therefore, upon the first question, being
whether this was or was not a receiving-house, I think the jury warranted in
coming to a conclusion that it was. Secondly, as to whether the contract
was made with the defendants, I think there being a series of agents makes
no difference, and that the facts went to shew a contract made with the
defendants, as much as if made immediately with them. But whether the
plaintiff was bound to declare the value, under all the circumstances, as a
condition precedent, is a point of some importance as to the construction of
this act, upon which we will take time to consider*
Patteson, J. — The first point made is, that the innkeeper was not
(a) 2 Cronp. & Mee8.353.
MICHAELMAS TERM, 1836.
413
employed by the defendants : but it appears that the innkeeper kept books
for booking parcels, and that the defendants' coach had stopped through a
space of two years at his house. It did not change horses there, which
makes tlie case stronger, but stopped for the express purpose of taking up
parcels. Therefore it is a contradiction to say that he was not the agent of
the defendants. That the innkeeper's house was a receiving-house of the
defendants, there can therefore be no doubt. With respect to the point
made, that the contract was not entered into with the defendants, the evidence
shews that Johnson undertook to convey, not to London^ but from Bradford
to Melksham only. There his responsibility as carrier ceases, and he be-
comes the agent of the plaintiff, for the purpose of delivering the parcel to
the defendants' coach that it may be conveyed to London. That being so^
the defendants by the innkeeper, who clearly for this purpose was their agent,
enters into a contract with the plaintiff, as represented by Johnson, to convey
to London. The contract, therefore, between the plaintiff and the defendants
is complete.
Coleridge, J. — I am of the same opinion ; and taking the facts in the
order in which they occurred, there appears no difficulty in the two first
points. The plaintiff delivered the parcel to Johnson at Bradford^ who re-
ceived the carriage upon it, and forwarded it to Melksham. There was no
contract between the plaintiff and Johnson to send to London, but merely to
take to Melksham ; and when that was done, the responsibility of Johnson
ceased. It is proved that the parcel was delivered at a house where the
coach had stopped for upwards of two years to take in parcels. These cir-
cumstances alone would make the house at Melksham a receiving-house.
We must understand that the stopping took place upon an arrangement of
that kind. But it is said that this is not so, because the innkeeper had the
option as to the coach to which he should deliver the parcel, and that there-
fore he is not an agent of the defendants on this occasion. But as soon as he
who is agent has determined by which coach to send, then from that moment
he becomes an agent for that coach. We may omit all consideration of the
transactions previous to the delivery at Melksham, and it can make no dif-
ference whether the parcel was delivered there by the plaintiff or by his
agent.
Williams, J.— I thought at the trial, and the jury thought also, that there
could be no doubt as to this being a receiving-house. The plain meaning of
the words of the statute, applied to the circumstances, removes all difHculty.
For two years and a half this house had been vsed for the receipt of parcels ;
how then can it be contended that it is not one, when the statute expressly
says such houses may be deemed to be receiving-houses ?
Cur. adv. vult.
King*8 Bench,
Syms
V,
Chaplin
and others.
Lord Dekman, C. J. on this day delivered the judgment of the Court. —
The declaration stated that the plaintiff delivered to the defendants, as
carriers, a parcel to be delivered in London, and avers his damage in conse-
quence of their non-delivery. We disposed of all the points upon this
motion except one, which was, whether the plaintiff was entitled to recover,
he having sent an article of the description, and of more than the value
414 TERM REPORTS im thb KING'S BENCH.
King*t Bench, Stated in the Carriers' Act, without having given notice of the value. The
v^v^ first plea was non assumpsit : the second, that the parcel was not delivered
Syms fnodo etformd : the third, that it was delivered, not at a receiving-house of the
Cukvi IN defendants, but to their servant, without any notice of the value. We have
and others, no doubt whatever that the plaintiff is entitled to recover. The jury were
of opinion upon the facts, and we are also of opinion, that the parcel was
delivered at a receiving-house ; and, consistently with the second plea, it
may have been received with notice, consequently no defence under that
plea was made out. It was also contended that the defendant had made out
a good defence under the plea of nmi assumpsit ; because, as it appeared in
point of fact that there was no notice given, no promise could be implied ;
and Oxoen v. Burnett (a) was referred to. But that case was before the new
rules, and we are of opinion that no such defence can now be set up under
the general issue. It was the duty of the defendants, if they intended to rely
on that defence, to apprise the plaintiff of their intention by a special plea to
that effect.
Rule refused,
(a) 2 Cromp. & Mees. 353.
The King v. The Inhabitants of Holbeach.
November \6th,
Tiie examinaUon f\}f appeal agaiust an order of justices removing G, H., his wife and child,
a setUement by from the pansh of Holocach, m the parts of Holland^ m the county of
i?°Joti«^f the * -^^^^^"j to the parish of Spalding, in the same parts and county, the ses-
grounds of appeal slous quashed the order, subject to the opinion of the Court of King's Bench
tio^n**"nU?e*hiriM "P®" ^ ^^®» which Stated that the grounds of removal, as set forth in the
for two days' examination of the pauper^ were a niring and service with /. fi. : that the
fj^'ciub feast^— noticc of the grounds of appeal were, that at the time of the pauper hiring
if««.thatuje himself, he stipulated that he should out of his year's service be allowed to
norundersucii hsLve (wo dot/s* holiday s at Spalding club feast, in the month of July, and that
noUce, give cvi- \^q ^vas allowed and did take the said two days. At the sessions the pauper
clones of &n ex* a *
ception for one provcd that he hired himself for one year to /. B., and duly served under
^^iV^'ft^^ *' that hiring ; but upon cross-examination admitted that at the time of hiring
SemUe, that the himself he bargained for one day's holiday to go to Holbeach fair, and that he
been * rfficient"^^ ^^^ ^"^^ holiday in pursuance of the bargain ; but he denied that he made
although it had any bargain to have holidays at Spalding club feast, and in fact he had not
tion^of°the"tmTor ^^V ^^^^ holidays. The respondents contended, that as the holiday for
place when the Holbeach fair formed no part of the grounds of appeal, the appellants could
have bceu eu- uot go into It. The Court of Quarter Sessions, however, being of opinion
Joyc**- that they were not precluded from receiving the pauper's evidence of the
holiday for Holbeach fair, and treating the hiring as exceptive, quashed the
order, subject to the opinion of the Court of King's Bench, whether, under
the circumstances, they were precluded by 4 & 5 Will, 4, c. 76, s. 81, from
receiving such evidence.
Whateley, in support of the order of sessions. — The question is, whether
the notice given by the appellants was not sufficient to enable the appellants
to set up the exception relating to Holbeach fair. All the object of the
statute seems to have been attained ; an exception was bargained for with
MICHAELMAS TERM, 1836. 415
the master at the time of hiring, as stated in the notice. The attention of the King*8 B^neh.
respondents must have been called to the point upon which the appellants ^^v^
relied. Probably, if the notice had merely stated in general terms that the The Kino
appellants relied upon an exception in the hiring, that would have been suffi- inhabitanu of
cient ; all that can be urged against them is, that they have gone too far. — Holbeacu.
[Lord Denman, C. J. — They have not only gone too far, they have mis-stated
facts ; it is easy to put a case where false matter, though unnecessary, might
be introduced for the express purpose of misleading.] — ^The Court below
having been satisfied, it is submitted that this Court will not interfere with
their decision.
Lord Denman, C. J. — We think it quite clear that we ought to see that
the requisitions of the statute are strictly observed. If less had been done
it might have been sufficient; but as what is false has been introduced, and
the objection was taken at the sessions, we think it better to hold that this
notice is insufficient.
Pattesok, Williams, and Coleridge, Js. concurred.
Order of Sessions quashed.
Amos was to have argued against the order of sessions.
The King v. The Inhabitants of Kelvedon.
November \6th,
i^N appeal against an order of justices for removing James Bird from the i.ApauperCwhose
parish of Kelvedon in Essex, to the parish of CoUterworth in Lincolnshire, J'eriru^uuted
the sessions quashed the order, subject to the opinion of this Court on the in hiB esaminaUoD
following case :— The pauper having, subsequently to November 1st, 1884, ^^i^^,^om?de
become chargeable to the parish of Kelvedon, an order of magistrates was the ordrr, that his
obtained for his removal to the parish of CoUterworth in Lincolnshire, and a [he'^^rish*©? a '°
notice in writing of the pauper's chargeability, accompanied by a copy of the <^ h« ^'^^ heard
order of removal, and by a copy of the examination upon which the order ihlltire^hld hcwd
was made, was sent by the overseers of Kelvedon to the overseers of CoUter^ *"■" "^ '*>*' *»«
north. The examination, of which a copy was so sent, was as follows : — man fix>iii c. .-!
Held, tliat the re-
" I was born at Kelvedon, in the county where my father then resided, but J^°t"itJ*^***
belonged to the parish of Colsterworth in Lincolnshire, and continued to dence of a settle-
belong there till his death, as I have heard and believe ; and I have also ui^^parper^father
heard him say that he was a certificated man from the said parish of Colstef' *» c, by appren-
v^orth in Lincolnshire, &c." ^" Under 4
Sc5 9V,4, c. 76,
The overseers of Colsterworth, within twenty-one days, gave notice of '^|^i'^"**!|^'
appeal, and with such notice of appeal sent a statement in writing of the to commuDiciite
grounds of the appeal as follows :- ™Y.u«T.S:°
settlement ia-
" That the father of the said pauper, James Bird, never was legally settled ^^^^^ ^
in our parish of Colsterworth, nor was there ever a certificate granted by our than that' con-
parish of Colsterworth, owning the pauper's father to be legally settled in our JlJ^^^J," "'* "**
416 TERM REPORTS in the KING'S BENCH.
King*t Bench, ^SLTish of Cohierworth, as in the examination in this case is stated ; and take
WvW notice, that at the trial of the appeal we mean to avail ourselves of both or
The KiKo one of the said grounds in support of the said appeal.'*
V.
Kelvedon.** ^' '^^ hearing of the appeal in 1835, the respondents proposed to prove a
settlement gained by the pauper's father in the parish of CoUterworth by
apprenticeship ; upon which it was objected by the appellants, that sucli evi-
dence could not be received, on the ground that the respondents were not at
liberty to give evidence of any other grounds of removal than those set forth
in the order of removal and examination, and that it was not stated in the
order of removal or examination, as a ground of removal, that the pauper's
father had acquired a settlement by apprenticeship in the parish of CoUter-
worth. The Court of Quarter Sessions, upon this, decided that the respondents
were not at liberty to give evidence of the pauper's father having gained a
settlement in the appellant parish by apprenticeship, and quashed the order
of removal. If the Court should be of opinion that the respondents were
not at liberty to give such evidence, the order of sessions is to be confirmed ;
otherwise, it is to be quashed, and the appeal is to be sent to the sessions to
be heard.
Sir W, W, Foiled, and Ryland, in support of the order of sessions. — The
New Poor Law Amendment Act, s. 81, provides that the respondent parish
shall not go into or give evidence of any other grounds of removal than
those set forth in the examination. The sessions, therefore, did right in
refusing to hear evidence of the apprenticeship. There is nothing in the
examination which could lead the appellants to suppose that the question to
be tried was, whether or not the pauper's father gained a settlement by
apprenticeship. They had, therefore, no notice of the intent to prove such
a settlement, and they only came prepared to shew that no certificate was
granted. — [Lord Denman, C. J. — The magistrates ought to set out the full
grounds on which the removal was made, but the parish cannot alter the
language of the examination. — Patteson, J. — The act of parliament does not
intend to regulate the language of the examination.] — The intention of the
legislature was, that both parties should be informed of the questions to be
tried. This examination conveys no information whatever to the appellants,
and if it is held that evidence of a kind of settlement not referred to in it
may be given, the regulations of the act of parliament will become a nullity.
Knox, (and Turner was with him,) contrd, — The case of Res v. Justices of
Cornwall (a) is a far stronger case than the present, but there is no pretence
for alleging any neglect or misconduct in the respondent parish. The act
contains no provision that the magistrates shall set out the grounds upon
which they made the order in the examination ; and all that is required of
the respondents is to send copies of the order and of the examination to the
appellants. That is admitted to have been done. (He was then stopped by
the Court.)
Lord Denman, C. J. — The act of parliament might have been more full,
it might have imposed upon the respondents the necessity for making a
(a) 2 Har. & Wol. 167.
k
MICHAELMAS TERM, 1836. 417
statement of the grounds upon which they intend to rely at the hearing, as it King's Bench,
has upon the appellants, but that is not what the act of parliament has done. v^v^i^
It only requires that the respondents should send a copy of the order and ex- '^^ ^'*'°
amination. And if that was properly conducted in every case, it would be inhabitanu of
sufficient information for the appellants to act upon. However, that is per- Kelvedon.
haps scarcely necessary, because the appellants must know the grounds of
their own appeal. All then that is thrown upon the respondents to be done,
was done. What has been said, amounts to a mere criticism on the manner
in which the examination before the magistrates was conducted. It shews
no blame attaching to the conduct of the respondents.
Patteson, J. —I am of the same opinion. The appellants wish now to
make it appear, that the examination led them to believe that the respondent
parish only intended to rely upon the circumstance of the pauper's father
having received a certificate from the appellant parish. But that is not so,
for one of the grounds of appeal was, as appears by the notice, that the father
never gained any settlement at all in the appellant parish,
Williams, J. — We have nothing to do with the question, whether this ex-
amination was properly conducted. The examination contains nothing as to
the manner in which the pauper's father became settled. A copy of this exa-
mination was sent, and the act of parliament so far was complied with. Then
did the respondents travel out of the ground of removal set forth in such
examination ? I think they did not ; they gave particular evidence of what
is there stated generally. It was not meant that the examination should set
out all the facts upon which the respondents may afterwards rely.
CoLERiDOE, J. — There is a great difference in the language of the statute
with respect to the respondents and appellants. The respondents obtain the
order in consequence of an examination which is taken in writing. All they
have to do, is to send copies of the order and examination to the appellants.
The statute takes care that the appellant shall not be prejudiced, because
the removal is not to take place till after twenty-one days* notice, during which
time, it is provided, that the appellant parish shall have free access to the
pauper, for the purpose of examining him touching his settlement. If then
any ambiguity exist in the examination, every facility is given for its re-
moval. But since the grounds of appeal can be known to the appellants
only, the act provides that the appellants themselves shall set out these in
their notice. This variance between the enactments relating to the two
parishes respectively, is accounted for by the difference between the circum-
stances in which they may stand.
Order of Sessions quashed. The case
to go back to be reheard.
▼•L« n. SI
418 TERM REPORTS ih thb KING'S BENCH.
King't Bench.
The King v. The Inhabitants of Bobbing.
November 16th,
The rector of a /^N appeal Bgainst an order of two justices, whereby //wry 5»iar^ was
IT. s. on a Sunday, removed from the parish of Barming to the parish of Bobbing^ both in
himtrperform *^^ county o£ Koitf the sessions confirmed the order, subject to the opinion
the duty of clerk of this Court upon the following case : — In the year 1811, the offices of pa-
diVso M?*th"° ^^s^* clerk and sexton of Barming became vacant, and the reverend Mr. Noble^
rector on coming yvlio was then rcctor of the parish, sent for the pauper on a Sunday in that
»aid*io him," I year, and requested him to perform the duty of clerk for that day. The
shall appoint you pauper did SO ; and Mr. NoblCf on coming out of the desk, said to the pauper^
Md sexton, Mud '* I shall appoint you my regular clerk and sexton, and to follow me in roar-
to follow me in nages and funerals." The pauper thereupon^ without any thing further be-
nerais.'*~/f«»,that lug Said or donc, entered upon the execution of the duties of the said offices.
If . 5. was thereby ^^ continued to perform all the duties, and to receive the emoluments of
regularly ap- .
pointed parish thosc officcs from theuce until 1833. Soon after the pauper entered upon
ser^ng^he^office^ ^^® officcs as above-mentioncd, two of the principal inhabitants objected to
he gained a set- what the rcctor had done, inasmuch as the pauper was not a settled parish-
*"*° ' ioner of Barming ; but the rector said that the pauper was the fittest person be
could find, and that he should therefore persist in what he had done. There
was a salary of 1^. per week attached to the offices, which had been paid by
the parish to the person who had previously filled them, and which the
pauper applied for at the end of the first year. The overseer to whom he
applied, at first refused to pay him the salary, assigning as a reason that the
pauper was not settled in the parish, but the rector having threatened to
take legal proceedings against the parish officers, the salary was paid to the
pauper by the overseer, and was continued to be paid by the parish to him
for four or five years, without any objection on the part of the parish. At
the end of that period the pauper applied to the parish for an increase of
salary, and the subject having been taken into consideration at a vestry meet-
ing of the parishioners, it was at such vestry meeting agreed to raise the
salary to Is. 6d. per week, and at this rate the pauper was paid during the
remainder of the term he executed the offices. The question for the opinion
of the Court is, whether under the above circumsti^nces the pauper gained a
settlement in the parish of Barming. If so, the order of sessions is to be
quashed ; if otherwise, to stand confirmed.
D. Pollock, in support of the order of sessions. — The only point to be con-
sidered is, whether the pauper was regularly appointed to the office of parish
clerk. If he were, and afterwards executed the office. Rex v. Stogursey (o)
decides that he thereby gained a settlement. But here the case states nothing
to shew that an actual appointment ever took place. The words of the rec-
tor merely intimate an intention to appoint. Moreover, if there ever were
an appointment, still it is altogether invalid, never having been signified to the
parishioners, pursuant to the directions of canon 91 (h). That canon provides
that " No parish clerk, upon any vacation, shall be chosen within the city of
London or elsewhere, but by the parson or vicar ; or where there is no par-
son or vicar, by the minister of that place for the time being ; which choice
(a) 1 B. & Ad. 795. (6) 3 Bum's Eccl. Law, tit« Farith Clerk.
\
MICHAELMAS TERM, 18S6. 419
shall be signified by the said minister, vicar, or parsoni to the parishioners, j(ing*s Bench.
the next Sunday following, in the time of divine service.** s^^v'^
The King
Bodkin (and Deedes was with him) contrii, — At all events the appointment inhabitants of
by the rector is complete, for the parishioners have no power to interfere Bobbing.
with it. (He then, aHer referring to Gallon v. Milwich (a), was stopped by
the Court.)
Lord Denman, C. J. — Here there was a regular appointment, and I much
doubt whether the canon does make any mention to the parish necessary.
Pattbson, Williams, and Coleridge, Js. concurred.
Order of Sessions quashed,
(a) 2 Salk. 636 ; Strange, 943.
The Kino v. The Inhabitants of Billinohay.
November \Qth,
f\^ appeal against an order of two justices removing Lynn from the parish i. if the Court
ofAslerbyt in the parts of Lindsay, in the county of Lincoln, to the parish sionswnd up a
o£ Billinghay in the same county, the Court of Quarter Sessions confirmed case for the opi-
the order, subject to the following case, which was drawn up by the chair- ©f jr. b., and de-
man. The pauper was bound apprentice by indenture, for the term of five **" ^ ^»*^* ^^^i^
Order coDfinscd
years, to Robert Lund of BilUnghay, a wheelwright, and served him at Bil- or qaashed, ac-
linghay under these indentures for one year and eight months. The inden- J^^fh^ulthink
tures were then cancelled, the pauper's father having bought up the re- their constmctioa
mainder of the time. The pauper afterwards, having first gone upon liking, ^^,^e"^°ghTor
let himself under a written agreement to Robert Medley, of North Rancely, vrong, but omit
wheelwright, which is signed by the pauper's father, Robert Medley, and the c?en?to" he!r
pauper : it is in the following words : — -wheUicr their
'^ ^ ** order is on tlie
Memorandum — " That the undersigned, Robert Lynn, agrees on behalf of aot^-^'^Tcounof
his son Robert Lynn, that he shall serve Robert Medley, of North Rancely, in K. b, wiii uever-
his business of a wheelwright, from this time to the 27th March, 1830, the q^^th'°or™rr
said Robert Medley paying, at the expiration of the said term, 5L to the said » they think Uie
Robert Lynn the younger. Robert Lynn to find his son clothes, washing, and or wrwig!°° "^^^
all other necessaries, and Robert Medley meat, drink, and lodging. — Witness <• a case sent
our hands this Srd December, 1827. forthco^'io'Jfof
" Robert Lynn, Robert Lynn, Robert Medley.^ Tui'^lltlf^L
hearing of an ap-
The pauper stated, that he served as an apprentice. The respondents p*^*^ touching uie
proposed to give in evidence conversations between the parties before and at pauper, it was pro-
the time of signinir the instrument : but the Court refused to admit the evi- p®*?** *° «^^* ***
evidence conver*
dence. The respondents also proposed to give in evidence the indorsement sations between
on the paper within which the agreement was written ; but as it was not ^^Siea^m
proved that the indorsement was on the paper at the time the agreement was ment, but did not
state what those
conTersations were ; also that it was proposed to give in evidence an indorsement upon the agreement, but
that it was not proved that the indorsement was In existence when the agreement was signed. Tlie ques-
tion stated for Uie opinion of the Court was the construction of the agreement. The Court refused to send
the case to be restated.
3. X. agreed on behalf of his son, that he should serve If. from the date of the agreement till a time
menUoned, M, paying, at the expiration of the said term, 5i, to tlie son. L, to find his son clothes, washhag, and
ail other necetMiies, and Jft meat, drink, and lodging :— AW, tbat tiiit WM ft contrftct of hiring and lervke^
B Sis
420 TERM REPORTS in the KING'S BENCH.
King*s Bench, signed, the Court refused to admit the evidence. If the Court of King*s
^^^>n^ Bench shall be of opinion, that the agreement was an agreement of hiring and
The Kino service, the order of sessions is to be quashed ; otherwise to be confirmed.
Inhabitants of
BiLLiMGHAY. Whatclcy and Whitehurst, in support of the order of sessions. — ^The ques-
tions in this case are, whether the sessions have on the face of the case come
to a wrong conclusion. And if so, as tliey clearly have rejected evidence
they ought to have received, the case must be sent down again to the ses-
sions to be reheard. — [Lord Denman, C. J. — The sessions do not wish to
have our opinion whether a parol contract can be engrafted on a written one,
but whether the contract, as stated, was one of hiring and service, or a defective
contract of apprenticeship. The evidence offered might, or might not, be
admissible, according to circumstances ; but we cannot assume that the ses-
sions did wrong, and they do not want our opinion on that point. We must
decide on the question they put to us.] — It is apprehended that this Court
will decide upon the whole case as it appears stated, and not upon a question
put by the sessions ; indeed the Court not only will decide upon the whole
case as it appears, but they are bound to do so. The Court of Quarter Ses-
sions have no power to put a question to this Court, or to state a case as a
case for the opinion of this Court. The Court of Quarter Sessions may, if
they please, give their reasons in their judgment ; it then becomes a special
judgment. This Court has a superintending power over all inferior Courts,
and can remove their records here. When the record is brought up, of
course the special judgment appears on the record, and if it appears that the
judgment is not warranted by the special grounds stated in it, this Court will
quash that judgment, and indeed are bound to do so, but not otherwise. As
these special judgments are generally the facts of the case agreed upon by
the parties, common convenience has called them special cases ; but this
Court can only deal with them as special judgments. Then upon the whole
of this special judgment or case, can this Court say the Quarter Sessions
must have done wrong ? It appears quite clear on this record, that the pauper
gained a settlement in the appellant parish, it remained for the appellants to
shew a subsequent settlement. It is clear that they have not shewn any.
They attempted to do so, by setting up a hiring and service in a third parish
under the document in question ; but assuming for the moment that this
constituted a contract of hiring as a servant, the statute requires another
ingredient to confer a settlement, which, upon the face of this case, manifestly
never took place — namely, service as a servant. Here it appears that there
was no service as a servant, but as an apprentice. Therefore, on the face of
the case, it is manifest that the appellants did not prove a good subsequent
settlement, and the sessions were consequently right. But at all events, this
case must be sent down to be reheard, for the sessions rejected the evidence
of what passed, which would have shewn the true nature of the transaction.
— {^Coleridge, J. — We cannot from the case tell whether the evidence was
improperly rejected or not, a particular question should have been tendered,
and if it had been refused, that might have been brought before the
Court.] — Particular questions were tendered and taken down, but tlie
chairman stated the case and omitted them; however, enough appears
on the case, though imperfectly stated, to shew that some evidence was
improperly rejected. The pauper proved the execution of the document
MICHAELMAS TERM, 1836. 421
in question, clearly the respondents were entitled to ask him what took King*s Bench.
place on that occasion relevant to the execution of the instrument. But v^s^^
it appears by the case that the Court refused to permit any question to be ^**® ^^^^
put. A subscribing witness to a deed may surely be asked what passed lohabitants of
on the execution of it, and it is for this reason he is required to be called. Billinohay.
Then it will be said, such evidence was inadmissible ; but though the par-
ties to the contract may be estopped from shewing the transaction to be
other than appears, other persons are not. This is clearly proved by several
cases ; Rex v. Highnam (a), Rex v. Llangunnor (b) , Rex v. North Wingfield (c).
Rex V. Cheadle (d)^ in which last case this distinction is taken by Lord Ten-
ter den. There are several other cases to the same effect. Rex v. Laindon (e),
is a case exactly like the present. There is another point in which it appears
that the sessions were wrong, namely, in not permitting the whole paper to
be read. A party caimot produce part of a document as an account stated,
thereby omitting a receipt at the foot of it. There is no case on the sub-
ject, but reason and justice require it. As for this indorsement not having
been proved to have been written at the time the agreement was signed, it
must be assumed to have been so until the contrary appeared. If written
at a different time, the onus of proving that lay on the appellants who
produced it, not on the respondents who knew nothing of it. Then as to
whether this document is a defective contract of apprenticeship, or hiring
and service, there are scarcely two cases consistent with each other on the
subject. It is in truth a mere matter of fact which the sessions are the
proper tribunal to decide. In many cases this Court have said, hiring and
service is a mere question of fact with which, though they disagree with the
sessions, they will not interfere. Here the sessions have decided this is not
a hiring and service, and this Court will not reverse their decision, though it
may be of a different opinion.
G» T. White and Bourne, contri, were stopped by the Court.
Lord Dekman, C. J. — I do not think that there is any real doubt here ;
we are bound to deal with the case as we find it. The sessions send us a
written document, and ask us to decide whether or not the conclusion they
have formed is correct. It is clear that a question of fact is involved when
the proceedings between the parties have been by parol, but if every thing
depends upon a written document, then the question is one wholly of law,
and then I think the sessions may say to this Court, * We wish to have your
opinion on that document.' If that be so, we cannot attend to what has taken
place at the sessions, we must look to the instrument only, and see what is
the effect of that. I think that it constitutes an agreement of hiring and ser-
vice ; it is a memorandum that the father undertakes on behalf of his son
that he shall serve from a certain time, paying 51, &c. ; there is not a word
said about teaching or apprenticeship ; nothing of that sort. We therefore
must decide against the view which the sessions have taken. Then it is
argued that the sessions themselves shew that they have done wrong, by re-
fusing to hear certain conversations. They state a mere agreement, and the
opinion of the pauper as to the character in which he served. In such a
case as this, evidence of conversations may be admissible or may not ; it
fa) Bott, 501 . (d) 3 B. & Ad. 833.
[b) 2 B. Ac Ad. 616^ (e) 8 T. R. 379.
b)2
6 I
B.&Ad.912.
422 TERM REPORTS in the KING'S BENCH.
Kin<r'$ Bench, would be going a great deal too far to say, that all the witness might have
^^^^/ been able to prove as having passed by parol, was receivable. If it is wished
The King jq shcvv that an indenture is fraudulent, then there must be extrinsic evi-
Inhabitanu of ^^^"ce ; but the question with the sessions here was merely as to the effect
BiLLiNGUAY. of the contract. In such a case we cannot look out of the written contract.
If, as is suggested, it was meant to be contended that there were circum-
stances which made the evidence admissible, then the question should have
been not as to the effect of the contract, but whether, under the circum-
stances, it was admissible. But we cannot assume that the sessions have
rejected any thing which was properly receivable. As to the construction of
the instrument, I think, that on the face of the case their decision was wrong,
and the order will therefore be quashed.
Patteson, J. — The sessions have to determine the law and the fact. But
I do not agree that there is no difference between a written instrument and a
parol contract. The latter involves a question of fact ; but the construction
of a written instrument is wholly a matter of law. The sessions have sent
this written agreement to us, that they may have our opinion upon it. As
to whether they were right in rejecting the evidence, I give no opinion. I
do not know what that evidence was, though it seems that it was a con-
versation. Now, some conversation might be evidence, and a great deal
would not. There is nothing to make us think that in the present case it
was evidence ; the sessions have not told us any thing about it, and we can-
not pay attention to, or try to form a conclusion about what might be one
thing or might be another. The point as to the indorsement is easily decided.
The sessions properly refused to admit that in evidence, because it was not
shewn to be in existence at the time when the agreement was made. All
then that remains for us to decide is, as to the effect of the instrument
itself. I think that the effect was to make a contract of hiring and service,
and therefore that the sessions were wrong.
Williams, J. — I am of the same opinion, upon the ground that the me-
morandum is in truth the subject which is submitted to our consideration by
the sessions. I consider all the rest of the case as being either not before us
or disposed of, for I cannot conclude that because the respondents proposed*^
to give evidence of conversations, that therefore they were admissible, al-
though certainly some might have been. In Rex v. Highnam (a), which was
the original case as to imperfect contracts of apprenticeship, it was found that
the parties did not execute an indenture, because they wanted to save the
stamp ; that went strongly to shew what was the intention of the parties.
But nothing appears in this case to shew that any question, relating to matter
properly receivable in evidence, was not allowed to be answered. With
regard to the main point submitted to us, I am of opinion that this writing
does, upon the whole, purport to be an agreement of hiring and service, and
nothing else. The sessions thought otherwise, and, thinking otherwise, have
requested to know whether they were right or wrong. I think that they
were wrong.
Coleridge, J. — I am of the same opinion. I am as averse as any body
can be to an interference by this Court with the finding of sessions as to any
(a) Bott, 601.
>
MICHAELMAS TERM, 1836. 423
matter of fact. The sessions sit both as judge and jury ; but in every thing King's Bench.
in which they sit as judge, this Court has a revising power. They have v-orw
here submitted to our consideration the effect of an instrument. Now, if the The Kino
case had been tried at Nisi Prius, the judge would have told the jury his inhabitants of
construction of that instrument. It cannot be said that the sessions have Bilunghat.
found the facts conclusively ; they find them conditionally, taking a parti-
cular view of the construction of the instrument ; and it now rests with us to
say, whether they have construed it rightly. I agree with the rest of the
Court, that they have not construed it rightly. Mr. fVhitehurst said, that
the sessions had found that there was no service as a servant. I think that
is not so ; they state that the pauper said he served as an apprentice, but it
does not follow that his service was in fact of that nature. With regard to
the point as to the rejection of evidence, I think, as the case is stated, that we
cannot decide the evidence to have been improperly rejected^ unless we are
prepared to say, that all conversations occurring at the time of execution of the
instrument, and that all indorsements are necessarily receivable as evidence.
The case is so meagrely stated, that we have no means of forming a judgment
upon those points at all. And in the absence of information one way or the
other, we cannot assume that the sessions have done wrong. I quite agree
with my Lord, that in the case where parol evidence has been received rela-
tive to a written instrument, it has never been employed for the purpose of
shewing its construction, but only for the purpose, as in Rex v. North Wing-
fidd (a), Rex v. Llangunnor(b)f and Rex v. Cheadie^c), of shewing some colla-
teral circumstance not inconsistent with the facts stated in the instrument, or
that some fraud was mixed up in the transaction.
Order of Sessions quashed,
(a) 1 B. & Ad. 912. (b) 2 B. & Ad. 616. (c) 3 B. & Ad. 833.
The Kino v. The Trustees of The Great Dover Street
Road.
November \6th,
f\^ appeal by the trustees of the Great Dover Street Road against a rate The provisions
made upon them for the relief of the poor of the parish of St. Mary, of the General
Netotngtony in the county of Surrey^ the Court of Quarter Sessions confirmed s g*o, 4, c i^,
the rate, subject to the opinion of this Court on the following case : — By 49 c'm'»"3* which
Geo, 3, c. clxxxvi, intituled ** An Act for making and maintaining a road from exempt aii persons
the borough of Southtoark to the Kent Road, in the county of Surrey;' after [^J^'j^f oTwy
reciting that the making of a broad and commodious communication between toils or ton-
the borough of Sotithwark,£rom near St, Georges' s church, to near the Brick" tJ?e*trusteMof»
layer's Arms public-house, in the Kent Road, would be attended with great »"o»d made under
advantage, certain persons in the act named were appointed trustees to exe- though such tms-
cute the same, and they and their successors were empowered to receive tecs are teuefici.
._'„•'_ _. _ , , * . • 1 1 ally interested in
certain specified tolls, and were directed to apply the monies received under the toib. and
the act towards the payment of the interest of a sum of money advanced by Ji^provteious of
shareholders or subscribers for the purpose of carrying the act into exe- tiie general acts,
and of Uie local
act, are IncoDsUteDt with each oUier.
424 TERM REPORTS m the KING'S BENCH.
King's Bench, cution, to the putting of the act into execution, and to the re-payment of the
v^v/i^ principal sum so advanced. Powers were also given to the trustees, for the
The Kino purpose of making and improving the road, to treat and agree for the pur-
The Trustees of ^^^^ ^^ ^^^ ^^^ houses and lands along the line of road, and to treat for the
the Grbat loss and damage which the persons interested therein should sustain. Powers
Ro^r^^^ ^^^^ ^^^^ given to the owners interested in any lands on the line of the
intended road to sell them to the trustees.
The 101st section of the act directed that the said trustees should pay
to the churchwardens and overseers of the respondent parish such annual
sums as at the passing of the act were payable as parochial rates in respect
of houses which might be pulled down for the purpose of carrying the act
into execution ; but it was provided that such payment should cease when
and so soon as a sufficient number of houses should be erected and built on
the sides of the then intended road, and should be rated on the respondent
parish, and the rates thereof should amount to as much as the rates imposed
on the houses pulled down for the purpose aforesaid. It was further enacted,
that that act, and all the tolls thereby granted, should continue from the pass-
ing of the act for the term of twenty-one years. The above-mentioned act
was, in certain respects not material to be noticed, amended by an act passed
in the 51 Geo. 3, c. clxxv.
By a statute (local) 10 Geo, 4, c. cxiii, passed on 1st JunCt 1829, afVer
reciting the passing of the act 49 Geo. 3, c. clxxxvi, and 5 1 Geo. 3, c. clxxv,
and that the sum of 34,648/. l^s. 4d. of the subscriptions made in pur-
suance of the provisions of those acts, had been expended for the purposes
therein mentioned, but that the amount of tolls received upon the said road
had not been sufficient, after defraying the necessary, charges of making
and maintaining the same, to pay the subscribers in any one instance more
than at the rate of 3/. I6s, per centum per annum, and that the average pay-
ments of interest had been less than 31. per centum per annum, so that the
trustees had been unable to repay the subscribers ; and that for the purpose
of enabling the said trustees to continue the payments of interest or dividends
to the subscribers, and to repay the several sums subscribed for making the
said road, it was expedient that the term granted by the 49 Geo. 3, should
be further continued, and the said recited acts should be repealed, and other
powers granted instead thereof, the said recited acts were declared to be
repealed. By the said act (the 10 Geo. 4,) certain persons therein named,
some of whom were the trustees then in office under the former acts, and
their successors, being duly qualified to be elected, as thereinafter mentioned,
were appointed trustees for putting the act in execution, it being declared,
amongst other qualifications, that no person should be capable of being
elected, or of acting as a trustee in the execution of the act, unless at the
time of acting in his own right, or in the right of his wife, he should be pos-
sessed of or entitled to five shares at least in the capital stock raised for
making the said road, and in the actual receipt of the interest and dividends
thereof.
The act also authorised the trustees to take certain tolls at all the toll-
gates, bars, or turnpikes, and toll-houses, then or thereafter to be erected
in or upon or across the said road, for horses, cattle, or carriages passing
through the same. But it was by the 12th section of the act declared, that
the justices of the peace, assembled at the Easter quarter sessions for the
\
MICHAELMAS TERM, 1836. 425
county of Surrey^ should examine the accounts of the trustees, and have the King's Bench.
power to order the tolls to cease if it appeared to the justices that the pur- ^"^'^
poses of the act had been carried into effect. And it was further enacted, ^°* '^^^^
that all the tolls and monies raised by virtue of the recited acts, and then in The Trastees of
the treasurer's hands, and all the tolls and monies to arise thereafter by ^^ Great
virtue of the act, should be applied in the first place, and in preference to all Road.
other payments, in defraying the expenses of obtaining the act, in continuing,
erecting, supporting, and lighting the several toll-gates, bars, turnpikes, toll-
houses, and direction posts, to be continued, erected, supported, or lighted,
by virtue of the act, and in paying the salaries and allowances to the several
clerks, collectors, and other officers and other servants to be employed under
the act, and out of the surplus of such payments to pay, until the sums of
money subscribed for making the said road should be returned to the persons
entitled to receive the same, interest at the rate of 51. per centum per annum,
upon all principal sum or sums of money which had been subscribed ; and
that the trustees should then apply the residue of the monies arising from
the said tolls in repaying the several subscribers the monies respectively
subscribed towards making the said road, by virtue of the shares in the said
road belonging to such subscribers respectively, and for no other use or
purpose whatsoever. And it was enacted, that when and so often as the
surplus of the tolls applicable to the repayment of any part of the said sum
of 34,648/. I2s. 4d, should amount to the sum of 500/., the said trustees, at
their next meeting, should proceed to divide by lot to which of the sub-
scribers of and towards the said sum of 34,648/. I2s. 4d. the shares to be
paid off should belong. And it was enacted, that so soon as the said sum of
34,648/. I2s, 4(/., subscribed for the making of the said road, should be so
paid to the proprietors of the shares of the said undertaking, all tolb on the
said road should cease, and the toll-gates, toll-houses, and other erections on
the said road erected and set up by the trustees, should forthwith be taken
down, and the materials sold, and the money applied to the purposes of the
act ; and from and immediately after such sale, the powers granted should
cease, and the said act should be and become void and of no effect, as if the
same had been repealed ; provided, that in case the said sum should not be
wholly repaid, then the act should continue in force for the term of thirty-
one years, and from thence until the end of the then next sessions of par-
liament, and no longer.
In pursuance of the powers conferred by 49 Geo, S, the trustees appointed
under that act obtained conveyances of the lands and buildings along the
intended line of the road, of which they took possession, and made and com-
pleted Great Dover Street, and they erected toll-bars across the same ; and
they and the present trustees, under the authority of the act, have appointed
toll-collectors, through whom they have received the tolls paid at the said
gates. In order to complete the road, certain houses were pulled down
under the authority of the first-mentioned act ; but after the passing thereof,
and long prior to the making of the rate appealed against, many new houses
were built, and are now standing along the side of the road, and were and
are rated to and by the respondent parish, the rates whereof amounted to
more money than the rates imposed on the old houses so pulled down.
The former trustees repaired the road, and that part of it which is situated
in the parish of St. Mary, Newington; but since the act 11 Geo. 4, c. zlv,
(which was a public act for pavingi lightingi cleansingi and otherwise im*
426 I'SI^M REPORTS in the KING'S BENCH.
King*s Bench, proving such part of Great Dover Street, Triniiy Street, Trinity Square, and
v^^/^ the highways, roads, streets, maijcets, and other puhlic passages and places
The Kino leading out thereof, or ahutting thereon, or adjacent thereto, all within the
The Trustees of parishes of St, Mary, Newington, and St. George the Martyr, Southwark, in
the Great the county of Sufrey, as do not fall within the powers and provisions of any
Ro^"*^ existing acts of parliament,) the necessary repairs to the roads have been
done by the commissioners acting under the authority of the last-mentioned
act, who have raised the sum of 470/. by rates assessed upon the inhabitants
of the parish occupying premises on the line of the road so repaired : in
respect to such repairs, the total number of shares subscribed for, and which
constituted the capital mentioned in the act for making and maintaining the
said road in question, is 492, of which number 259 shares are held by the
trustees. The entire amount of tolls ever received has not been sufficient,
afler deducting the necessary expenses, to enable the trustees to pay off any
part of the capital or principal sum subscribed, or to keep down the amount
of interest thereon, calculated at the rate of 51, per cent, per annum, but the
whole of the principle sum is now due. (The case then set out an account,
which it is not necessary to detail.) The occupiers of rateable property in the
parish are rated at four-fifths of the average annual value of the proprietors
in their occupation. The respondents have rated the appellants in the sum
of 1150/. on their total profits for the year ending December, 1831, which is
less than four-fiflhs of the annual average tolls received by the trustees, afler
deducting the expenses before-mentioned. The appellants resist the rate on
tlie following grounds : —
1. That they are not liable to be rated at all, not being the beneficial
occupiers of any property within the parish.
£• (a) That they are expressly exempted from liability to be rated, by
virtue of the General Turnpike Act, 8 Geo. 4, c. 126, and particularly by
the 4th and 01st sections of the same act, and by the amended General
Turnpike Act, 4 Geo. 4, c. 95, and particularly the dlst section of the last-
mentioned act.
d. That if liable to be rated at all, they are only liable to be rated in
respect of their own shares.
If the Court should be of opinion that the appellants are not liable to be
rated at all, the rate is to be quashed. If the Court should be of opinion
that the trustees are liable to be rated in respect of four-fiflhs of the average
annual balance received by the trustees during the two years next preceding
the making the rate, afler deducting the expenses in that behalf before-men-
tioned, the rate is to be confirmed. If the Court should be of opinion that
the trustees are liable to be rated, but only upon the average annual amount
of interest paid to or retained by themselves upon their own shares, then the
rate is to be amended by reducing the sum at which the appellants are
assessed, from the sum of 1150/. to the sum of 838/. lOs. 8d.
Thesiger, and ilf. Chambers, in support of the order of sessions. — Assum-
ing that these trustees are beneficially interested, they are not exempted
from being rated by 3 Geo. 4, c. 126, s. 51, (continued by 4 Geo. 4, c. 95,)
which enacts that no person shall be rated to the poor-rate in respect of any
tolls or toll-house. It is true that the provisions of that act are made appli-
(a) As the jodgment of the Court pro* of cooniel rolatiog to the other groundl are
cmed upon this ground only, the ergumeats omittedt
MICHAELMAS TERM, 1836. 427
cable to any turnpike-road. But it is obvious that the intention was to apply King*i Bench.
tliein to those public roads only, where the tolls are taken for the benefit of v^v^
the public, and not, as here, for the advantage of individuals. In Rex v. Staf- The Kino
fordshire Canal Navigation (a), Lawrence^ J. lays it down, that in the case of fhc Trustees of
a turnpike, tolls are paid for the benefit of the public, not for the use of any the GmiT
individuals, and those tolls are not the subject of taxation within the statute ^^^VL ^^**"
43 Eliz, — [^Paitesonj J. — ^That argument almost goes the length of shewing
that there is no use in the 51st section, because, if the parties were not bene-
ficially interested, they would not be liable to be rated.] — ^That section was
introduced to prevent any question from arising about the occupation of the
toll-house. Moreover, it is clear that the legislature did not contemplate
the application of the general turnpike acts to the road in question. Many
provisions in them are perfectly inconsistent with provisions of the local act.
The statute $ Geo. 4, c. 126, s. 61, provides, that all the justices acting for
the county through which a road passes, shall become trustees of that road.
Sections 62 and 63 require in all such trustees, as qualification, the possession
of a certain amount of real or personal property ; and section 65 enacts, that
no trustee shall act in any matter in which he is interested, nor receive any
money out of the tolls, &c. under a penalty. But the local act, 10 Geo, 4,
c. cxiii. s. 3, provides, that no person shall be capable of acting as trustee
unless possessed of five shares at least in the capital stock raised for making
the road, and be in receipt of the interest and dividends which arise from the
tolls. There are various other provisions relative to mortgages and the
taking of land, equally contradictory. It is clear, therefore^ that this is not
a turnpike-road within the meaning of the general turnpike acts, and there-
fore the trustees are not exempted from the payment of rates.
D. PoUockf BamewaUf and Channellf contrif were not called on by the
Court.
Lord Denman, C. J. — This case has been ingeniously argued, and incon-
veniences have been suggested that would arise from the application of the
general turnpike acts to the road in question. That may or may not be so ;
still there can be no doubt but that this, both according to common sense and
in strict legal meaning, is a turnpike road. If so, then the clauses exempting
all persons from the payment of poors' rates in respect of tolb or toll-houses,
must apply to the present trustees. Had there been any difiSculty in carry-
ing these clauses into effect, that circumstance might have materially in-
fluenced our judgment. But the difficulty can only arise as to the construc-
tion and application of other clauses, with which, on the present occasion, we
can have nothing to do.
Patteson^ J. — I am of the same opinion. It seems to me that the whole
question is, whether this is a turnpike road or not. If it is, which no one
can doubt, then we must apply to it the provisions of the general turnpike
acts, as far and as well as we can.
Williams, J. concurred.
(a) 8T.R.340.
428 ^BRM REPORTS in the KING'S BENCH.
King's Bench, CoLERiDGE. J. — I am of the same opinion. It has been attempted to shew
v^v^/ that these trustees are different from other trustees of roads, because they
The King have a beneficial interest in the tolls, and therefore are not exempt from the
The Trustees of P^y^ent of poors'-rates. But that would not be a necessary consequence
the Great supposing them to have such interest. If a mortgagee of tolls bring his ac-
^^tS*^'^"**^ tion of ejectment, and put himself in possession, no doubt he becomes a
beneficial occupier. Still there can be no question but that he would be
within both the words and the meaning of the exempting clauses.
Order of Sessions quashed.
Bastard v. Smith and others.
November 25ik,
In trespass HPRESPASS lor breaking and entering certain closes in the county of
fiMW elMutum/n- X ^
gu, two piMs, Uevon.
<»"«**Jj^*»**^*»J"»' Earie had obtained a rule calling upon the plaintiff to shew case why the
uuder a custom defendants should not have leave to plead the several matters following : —
for^jm anqomiified Y'lTsU justifying the trespasses under a custom for all stanners and tinners
other under a in the Stannaries, to make trenches in any lands for conveying water to any
ofeuuywbUrt ' Stannary worked by them, for the better working of the same. Second,
to compensation. The like plea, but alleging the custom to be on making a reasonable compen'
together* ********** sation for the injuries done. Against which.
Sir fV. W. Follettf and Montague Smith, now shewed cause. — The two pleas
attempted here to be pleaded, are founded on one and the same principal
matter, varied in circumstances only ; they set out the same custom, in the one
case without, and in the other with, a qualification. The defendant therefore
is expressly precluded by the new rules of pleading, H. T. 4 JVUl. 4, from
employing them together. Several of the examples given much resemble
the present case ; that relating to a right of common especially. The act of
3 & 4 Will, 4, c. 42, provides that these rules, after they have come into effect,
shall operate as if they formed part of the act of parliament when the statute
was enacted. The Court therefore have no power to allow the defendant to
plead these two pleas ; Jenkins v. Treloar (<i).
Erie, contrd. — It is said that these pleas set out the same custom, that is
not so. These customs are said to have proceeded from royal grants.
They may have been founded on two perfectly distinct grants by diflferent
kings, one conferring power to go on the land with compensation, the other
without. The stannary customs in the district where they prevail, almost
resemble the common law. — [Coleridge, J. — You must contend that there are
two conflicting and yet co-existing customs.] — There is much evidence that
would apply to both pleas, and the object has been to avoid the necessity for
two trials.
Lord Denman, C. J. — This case being expressly within the rule referred
to, we have not the power to allow both of these pleas to be pleaded.
Patteson, J., Williams, J., and Coleridge, J., concurred.
Rule discharged*
(«) lGt]e,360; 1 Meet. & Welf . 16.
MICHAELMAS TERM, 1836. 429
King*i Bench,
The King v. The Churchwardens and Overseers of s-^.^
Edlaston.
November &th,
nPHIS was an application for a mandamus, commainding the defendants to i. The Court wUi
make a rate for the relief of the poor. By the affidavit of Gadsby, one S^^„peT^!riir'
of the overseers, it appeared that the parish of Edlaston is divided into two officers to make a
districts, one called Edlaston, the other H^yaston, which repair iheir roads JJ, Mor'Mhere
severally, but that the poor are maintained by the parish at large, who two out of four
annually appoint two churchwardens and two overseers. At the present refu»rto°concur
time, one churchwarden and one overseer reside in Edlaston, and one church- *** "^ "*• ^*»»«*>
warden and one overseer in Wyaston. On the 10th August, a rate being ne- sute that^cert?/
cessary, the churchwarden and overseer residing in Wyaston prepared one in *odoiure« are
the usual form, making no distinction between the occupiers of lands in the dutrict in the
two districts ; the churchwarden and overseer residing in Edlaston refused ^"i^g le ^
to concur in that or any other rate, which did not expressly state that cer- rach a mamimmt
tain iuclosures, one of which was occupied by Gadshy, were situate in Edlas^ flrJl^^nce! **
ton. The churchwarden and overseer residing in Edlaston are both tenants
of the lord of the manor of Edlaston, who claims the inclosures as encroach-
ments on his waste, and they refused to concur by his express directions.
Greaves, in support of the application. — The parish officers resident in
Edlaston have no right to make this admission a condition of their assent to
the rate. It might afterwards be employed against the interest of Wyaston
in questions relating to the highway rates.
The Court {a) having intimated their assent to the application, it was then
urged, on the authority of a case moved by Ludhw, Serjt., in the Bail
Court (6), that the rule must be absolute in the first instance, otherwise the
poor would be left unprovided for, pending the rule ; and that if the parties
had any good cause for resisting it, that might be shewn in the return of the
mandamus.
Rule absolute in the first instance.
(a) Lord Denman, C. J., Patteton, WiUiatnSf and CoUi-idge, Js. (6) Not reported.
The King v. The Justices of Warwickshire.
I
November 9lh,
A mmmdammt
N Hilary Term, 1835, a writ of mandamus to the justices of Warwickshire
was issued, without opposition on their part, directing them to enforce a ^"^ witiiout
conviction, by issuing process. The conviction was thereupon enforced. Wad- JES^m o° ^.^*
dington, in Michaelmas Term, 1835, obtained a rule nisi, calling upon the Jw^ting them to
justices to shew cause why they should not pay the costs of the application So^ aV^^ww
for the writ of mandamus, the costs of the writ, and also the costs of the *»»^*»f ^^^n o*>-
talned, calling on
then to shew
cause why they should not pay the co»ts of the application for the mamimmt, of the mmndmmt, and of the
rule, the Court held that the circumatanee of their not having opposed the application was no ground for
subjecting them to coats, and discharged the rule with coats.
8€mUif that tlte application should hute been made against the individaal julicct wbo Mted io the matter.
430 TERM REPORTS in thb KING'S BENCH.
King't Bineh, pi'csent motion. Against which, Sir /• Campbell^ A. 6* and Hoggins, were to
^^N«%/ have shewn cause, but the Court called upon
The Kino
^•. Sir F. Pollock (with whom was fFaddmgton), to support the rule. — The
W^?w^. grounds of this application are, that there was no reasonable cause for
SHIRE. putting the parties into the situation which compelled them to apply for the
mandamus, and the best criterion for shewing that to have been so is, that
there was no resistance whatever made to that application.
Lord Denman, C. J. — We think those grounds insufficient ; the case must
be exceedingly strong to put a public judicial body to the payment of costa.
Probably also, here the application should have been made against the par-
ticular magistrates who acted in the matter.
Sir /• Campbell, A. G. then applied for the costs of the application, it
having been moved with costs.
Per Curiam. — We think the rule must be discharged with costs.
Rule discharged with costs (a).
(a) See the previous case, Rex v. Justices of Warwickshire, 1 Har. & Wol. 18.
The King v. Templae and others.
November Wth,
A artiorgri doet /^ JONES moved, on behalf of the defendants, for a certiorari addressed
T'mV^^r to the Commissioners of the Ceniral Criminal Court, to remove an
from tbe Central indictment for a conspiracy. The indictment charged the defendants with
on'*Sl'*^o^nT* conspiring together to defraud the prosecutor of 45/., by passing off upon
Uiat difficult him an unsound horse as a sound one. It was urged, as grounds for the
win wueolthe application, that it was very doubtful, Rex v. PyweU(b), whether such an act
trial of the caw. amounted to an indictable offence; and that the defendants desired to have
the assistance of King's counsel. Templar alone of the defendants liad
surrendered.
Lord Denmak, C. J. — I think that as the other defendants have not sur-
rendered, this application cannot properly be made (c). But however that
may be, there is no reason for withdrawing this case from the Central Crimi-^
nal Court, which is fully competent to decide whatever points of law may
arise.
Patteson, Williams, and Coleridge, Js. concurred.
Rule refused.
(b) 1 Stork. 402. Jowl, ante, 375 j and Rex v. Hunt, 2 Chif.
(c) See Rex v. HasHl,anU, 321 ; Rex v. 130.
MICHAELMAS TERM, 1836. 431
King't Benck.
Manning v. Wasdale.
C. , , November \Bth.
ASE, The declaration stated that the plaintiff was an inhabitant within i. a right to take
the parish of St. Ives, in the county of Huntingdon, and the occupier of an water from the
ancient messuage therein^ and by reason thereof was of right entitled to the rinere eaMment,**
use, benefit, privilege, and easement of washing and watering his cattle in a »°<* ^o' » rr^ A
certain pond within that parish, and also of taking and using the water of the £. smUt, that
pond for culinary and other domestic purposes for the more convenient use *? *** •*^^?° **^
* , •' . . the occupier of an
and enjoyment of the said messuage and premises, at all times of the year, at ancient meatuage
his free will and pleasure; and that the defendant, while the plaintiff still so l°J^|,**oftuSri*ght.
inhabited and occupied &c. wrongfully encroached &c. upon the pond by an averment that
throwing in dirt &c., and thereby disturbed the plaintiff in the use &c. of Il'^walh^ilnd*
his said right &c. The second count stated the inhabitancy and occupation, water hia cattle in
as in the first, and that the plaintiff by reason thereof was entitled to the use Lid^^and
&c. of washing and watering his cattle, and of taking and using the water «»« the water
for his domestic and other purposes at all times of the year, at his free will tiMxj and other
and pleasure (omitting " for the more convenient use and enjoyment of the ^omeatic purposes
., . . ,. -.for the more con-
said messuage and premises"); it also laid the disturbance as proceeding venient u$e and
from different causes. To these two counts respectively the defendant in e»yoywentofthe
^ '^ , , said messuage,
his second and seventh pleas pleaded non-user by the plaintiff or by the would be, on ge-
owners or occupiers of the said messuage for twenty years preceding, con- gufljJie^^J^J*
eluding with a verification. To those pleas the plaintiff demurred specially, tioo of sucii right,
setting out for causes, that they are respectively and exclusively founded ^^^^l^r«,*
upon an alleged non-user of the easements and privileges mentioned in the
declaration for twenty years next before the commencement of this action,
which, as such non-user alone for twenty years, is wholly insufficient in itself to
destroy, extinguish, or defeat the rights and easements respectively men-
tioned, prescribed for, and laid claim to in said declaration ; and for that
those pleas respectively allege mere matter of evidence, which at most
would only found a presumption in law of a release, or other conveyance or
abandonment, of the right claimed by the declaration ; and defendant, if he
means to rely upon lapse of time as evidence of a release, destruction, or
extinguishment of plaintiff's right to the easements and privileges claimed in
the declaration, ought to have distinctly pleaded and averred the legal effect
of such evidence. And for that neither of the said pleas respectively alleges,
nor doth it by either of them appear, that plaintiff hath at any time sub-
mitted to, or acquiesced in any interruption to, or disturbance of, his said
rights and privileges mentioned and set forth in the declaration ; nor in fact
that there ever has been at any time any interruption to the right or title of
the plaintiff to the several privileges and easements in the declaration men«
tioned, nor do the pleas or either of them in any manner deny that the plain-
tiff has continually asserted and maintained his right, during the whole period
of the said twenty years in the pleas respectively mentioned, to the said
privileges and easements in the declaration mentioned. And for that it is
perfectly consistent with every allegation in the said pleas respectively, tliat
the rights and easements claimed by the declaration continue altogether
undisturbed and unaltered. And for that the said second and seventh pleas
respectively are argumentative^ inconduaivei and in other respects bad in
law. Joinder in demurrer.
432
TERM REPORTS m thb KING'S BENCH.
JTifi^'f Bench,
Manning
V.
Wasdai^.
Kelli/ was to have supported the demurrer, but the Court called upon
Wightman to support the pleas.
Wighlman, — The right as here claimed is divisible into two parts, one of
which relates to the use of the water for the purpose of washing cattle, the
other to the taking of it for culinary and other purposes ; as to the latter,
the right claimed is laid down in too extensive a manner in the declaration.
The plaintiff claims as resident in an ancient messuage, he ought therefore,
as far as regards the taking the water for culinary and domestic purposes, to
have limited his claim to water to be used for culinary or domestic purposes
in the dwelling-house. As the right is claimed here, it might apply to water
consumed in other houses. — [Coleridge, J. — The water is said to be taken for
the more convenient use and enjoyment of the said messuage, &c.] — That is
only so in the first count, but it is not a sufHcient restriction even there. The
use ought to be expressly tied down to purposes in the dwelling-house. It
is perfectly consistent with that statement to suppose that the water was con*
sumed in other houses. It may be for the more convenient use and enjoy-
ment of that dwelling-house that the plaintiff should use the water in other
dwelling-houses. — [Pattesont J. —The words of the declaration are, " taking
the water for culinary and other domestic purposes for the more convenient
use of the said messuage." Query, if this is not a mere imperfect averment,
of which you cannot now avail yourself?] — It is more than an imperfect aver-
ment. If the right can be laid in so unlimited a manner, the defendant may
be told that no doubt the water was taken for the more convenient enjoy-
ment of the house, but that the plaintiff was not tied down to use it there.
In Corby son v. Pearson (a), the objection was not taken till afler verdict, but
that case goes to shew that the omission of a proper limitation to the right
claimed would, if objected to before verdict, have been held bad. The de-
fendant is now entitled to all the advantages he would have enjoyed on
general demurrer. Then the right here claimed, at least that part which
relates to the taking of the water, is a profit d prendre in alieno solo, and
therefore the enjoyment of it cannot be laid in so large a way as to defeat
concurrent rights. As the right to water cattle is laid here, the plaintiff might
claim under it to water cattle fed in another county, to which he clearly can-
not be entitled ; Mellor v. Spateman (b). In considering the possible results,
the extreme cases that may occur may fairly be considered. The plaintiff,
in enjoying the right to take water as laid, may use it in all the houses in the
town, and so consume all the water in the land. This is like the case of a
common of turbary, where the claimant must distinctly restrict his claim to
the user for the purposes of the house by which he claims *, Dean and Chapter
of Ely V. Warren {c\ Wilsons, 1Villes{d)f Valentine \. Penny (e), — [Coleridge^
J. — Is it so clear that this is a projit d prendre in alieno solo f] — The second
part of the right claimed is no doubt a profit d prendre. The use of water
may be an easement, or may be a profit d prendre. The use of it for the
purposes of sailing on it, or washing in it, is an easement ; but the taking of
it away and consuming it is a profit d prendre. If this had been an easement
only, the mode of claiming it might have been correct, for an easement is
(a) Cro. Eliz. 458.
(b) I Wms. Saund. 346 f, n. 3 ; March.
83, pi. 37.
(c) 2 Atkyns, 189.
(d) 7 East, 121.
(«) Noy, 145.
V.
W A 3D A I.E.
MICHAELMAS TERM, 1836. 433
what many may enjoy, because the enjoyment by one does not interfere with r- » n u
that by others ; but as it is a profit d prendre which must be hmited, or it will y,^ ,^
be destroyed, that limitation must be stated. The distinction is shewn in Gate- Manning
ward*s case (a), — [Coleridge, J. — Have you any authority to shew that the
right to take water is a profit d prendre in land ? The stat. 2 & 3 JK 4, c. 71,
s. 1 , does not seem to consider it so. Besides, on the face of this declaration
I do not see any distinct right in another as the owner of the soil.] — Primd
facie it must be taken that there is. The plaintiff describes the place as a
pond, and it never appears that there is any right in him to the soil.
Kelly, contrd. — If there does exist any want of technical accuracy in the
averments, that cannot be taken advantage of now, it should have been the
subject of a special demurrer. But if a reasonable construction be put upon
them, there is no such inaccuracy; for what purpose can be attained or
sought in taking the water for the convenient use of the premises, but by
user in the premises ? If the mode of wording the claim here can be ob-
jected to, the same objection would apply to every claim to the use of a high-
way. The words used in such cases are always. general. It might as well be
said there, that because the right is not expressly restricted, the party claims
a right to the perpetual use by himself to the exclusion of all others. But it
is a mistake to consider the right claimed as a profit h prendre. In Fitch v.
Rawling (b), there is a recital of what things are easements and what profits
d prendre. There it was the interest of the counsel reciting them to limit the
number of easements as much as possible, yet he gives as one instance of an
easement, the right to water cattle at a watering place. Yet the water from
a well is as liable to be exhausted as the water in a pond. In Blewitt v.
Tregonning (c), also, this kind of right is cited as an easement. A case tried
at Cambridge^ Cross v. Johnson (d), was to the same effect. There is nothing
to shew that this might not be a pond with a stream running into it, and
then what is claimed would resolve itself into a mere right to take running
water.
Wightman^ in reply. — Blemtt v. Tregonning^ decides that no custom can
exist to take away sand from the soil of another. That is in favour of what
has been already said against the custom attempted to be set up in the de-
claration, the consequence of it being to exhaust the subject-matter of the
enjoyment.
Lord Denman, C. J. — It does not appear to me consistent with the or-
dinary use of language to call the right to take water from a pond, a profit
d prendre, — a terra which seems more properly applicable to some produce of
the soil. However, even if such right be a profit d prendre, I do not see why
it is not properly laid as in the declaration ; limited as it there is, we have no
reason to assume that there is not sufficient water coming in to feed the
reservoir, and more than supply those portions which the plaintiff claims a
right to take away.
(a) 6 Rep. 59 b, pi. 37. 6 Nev. k Man. 234.
(b) 2 11. Black. 393. (d) Reported on other points, 9 B. & C.
(c) 1 Har. & Wol. 431, 2 Ad. & El. 654 ; 613 ; 4 Man. & Ryl. 290.
VOL. II. F P
434
TERM REPORTS in thb KING'S BENCH.
Manning
V.
Wasdale.
Kwg*s Bench, Patteson, J — The inclination of my opinion is, that this is not a prqfii ^
prendre ; but if it were, I doubt whether the objections could be raised on
general demurrer. The words in the declaration are, ** for the more conve-
nient use and enjoyment of the said messuage.'' No doubt these do not
strictly confine the use of the water to that messuage only ; still, on general
demurrer they may be sufficient. Neither does the circumstance that in
Corbj/son v. Pearson (a), the objection was after verdict, make any difference,
for the statute 21 Jac. 1, c. 13, which remedies certain defects after ver-
dict was not then in existence. — [^fyightman then called the attention of the
Court to the second count, which did not contain the words " for the more
convenient," &c., and prayed judgment for the defendant on that count.] —
We must, therefore, now determine whether this right to take water out of a
pond is a prqfti d prendre ; and I am of opinion that it is not. I think that
the term is not applicable to that which does not arise out of the soil. One
instance has occurred to me where a right of this kind might exist in the in-
habitants of a parish. Commissioners under inclosure acts are often required
to set out a pond to be used by all the inhabitants as a watering place. If
that had been done I do not see why an inhabitant might not, in an action
against a stranger for filling up the pond, claim his right in the same way as
in this declaration. And if it is possible for circumstances to exist under
which such a claim would be good, the plaintiff is entitled to call upon us to
assume their existence.
Williams, J. — Admitting Mr. Wightman'^ objection, still I think the first
count contains a sufficient and intelligible restriction, at all events upon ge-
neral demurrer, of the right claimed. As to the second, for the reasons
given^ I do not think that the right claimed can be considered a profit d
prendre,
Coleridge, J. — My judgment proceeds on a ground that makes it imma-
terial to consider the difference between the two counts. I think that the
right claimed is not a prof I d prendre, but a mere easement only.
Judgment for the plaintiff.
(fl) Cro. Elii. 458.
November \9th,
1. Under 55 Oeo.
3, c. 6B, the Jus-
tices have no
power to narrow a
liigliway, or to
•top np part of it
only, or in the
same order to stop
up more tliau one
liigliway.
S. An order
purporting to stop
up part only of a
li^hway, or more
gteii one highway,
The King v. The Inhabitants of Mxlverton.
INDICTMENT for non-repair of a highway, found at the Easter Sessions,
1835, for the county o^ Somerset, removed by certiorari into the Court of
King's Bench, At the Summer Assizes for that county, in the same year, the
jury found a special verdict, by which it appeared that the several parts
of the highway in the indictment mentioned, called Rlackgroves Lane, were
out of repair; and before the 25th February, 1818, formed part of a public
highway leading from the village of Oak to the village of Preston Bowyer,
and thence to the town of Mxlverton, in the county of Somerset. That
the whole of the highway mentioned in the indictment was comprised in
the order set out ; that one part of it was wholly in the parish of Milcerion,
MICHAELMAS TERM, 1836. 435
and one half of the breadth of the other part in the parish o{ Miherton, the KingU Bench.
other half of the breadth, in the parish of Oak, also in the county of Somerset, >^v-w
That on the 25th February, 1818, an order was duly made by two justices ^^^ ^'^"
of the county of Somerset, acting within the hundred of fVilliton, in which, inhabitants of
after reciting that upon view it appeared to them that a highway in the Milvbrton.
parish of Miiverton, called Cook*s Lane, was unnecessary — and also that
another highway called Biackgrace*s Lane, in the county aforesaid, was
unnecessary ; the entirety of which last-mentioned highway, between two
points mentioned in the order, is situate in the parish of Miiverton, and
one half of the breadth of the same highway, between two points men-
tioned in the order, is in the parish of MUverion, and the other half of
the breadth of the same highway, between the two points mentioned in
the order, is in the parish of Oak, in the same county ; and also that
a certain other public highway, between two points mentioned in the
order, is unnecessary ; the entirety of which last-mentioned highway, be-
tween two points mentioned in the order, is situate in the parish of Miiver-
ton ; and one half of the breadth of the same highway, between two points
mentioned in the order, is in the parish of Miiverton, and the other half of
the breadth between two points mentioned in the order, is situate in the
parish oT Fitzhead, in the county aforesaid — thus proceeded : — *' We do hereby
order, that the said public highway hereinbefore first described, and stated
to be useless and unnecessary, and also the said public highway hereinbefore
secondly described and stated to be useless and unnecessary, (except so
much and such part thereof as is in the said parish of Oak, in the county
aforesaid,) and likewise the said public highway hereinafter thirdly described
and stated to be useless and unnecessary (except so much and such part
thereof as is in the said parish of Fitzhead, in the county aforesaid), be
stopped up, &c. &c." The verdict also found that the three highways di-
rected to be stopped up by the order, were not connected with each other,
but were altogether distinct and separate highways, and at considerable dis-
tances from each other. That the highway called Blackgrove^s Lane, com-
prehended as well the part of the said highway in the parish of Oak, as that
in the parish o£ Miiverton; that the part stated to be in the parish o{ Miiver-
ton, is the same highway as mentioned in the indictment, and that no order
by any justices of the peace had been made, whereby the part o£ Black-
gravels Lane, in the parish of Oak, had been ordered to be stopped up ; that
the special sessions, at which orders were made for stopping up roads &c.,in.
Oak, were held at Taunton, and not at Miiverton; and that the parish of Oak
was not within the division for which the justices who made the order acted
in February, 1818 (a). The first count of the indictment applied to that part
only of the road which was wholly in the parish of Miiverton.
F. N, Rogers, on behalf of the crown. — The order of the magistrates for
stopping these highways, was intended to be an exercise of the power^r*f
given by 55 Geo. 3, c. 68, s. 2, That section refers to 13 Geo. S, c. 78, for
the manner in which that power is to be exercised. It is to be the same as is
laid down by the last-mentioned statute, in the case of highways which are
(a) The verdict slated other facts, which, of the Court, have been omitted, together with
as they were not referred to by the judgment the arguments of counsel relating to them.
F p2
436 TERM REPORTS in the KING'S BENCH.
KingU Bench, to be widened or diverted. The statute gives no power to include more
^^v^ than one highway in such order, and where an authority of this nature is
The King given either by a statute or by a private agreement, it must be exercised
Inhabitants of strictly. Acting on this principle, the Court have recently decided, in Rex
MiLVERTON. v. Justices of Middlesex (a), on the authority of Rex v. Justices of Kent (6),
that where one and the same order provided both for the stopping up and
diverting of a road, that such order was bad, because the schedule gives no
form for such double order. The practice which has hitherto been pursued
is material : the treatise of Mr. Chitty, as well as that of Mr. Wellbelovedf
says, that where more than one highway is to be stopped, there must be an
order for each highway respectively. It is clear also, that no power to stop
up two roads by one order existed previously to 5 & 6 fViU» 4, c. 50, be-
cause the 86th section contains a provision authorising the magistrates, in
certain cases only, to do so. This is not a mere formal objection ; tbe intent
of the statute 55 Geo. 3, was to give a greater facility of appeal, and a greater
degree of publicity ; a cumulative order would tend to defeat botb of these
objects. Indeed, if several roads were included in one order, an appeal
would be rendered almost impossible, by reason of the numerous notices
whicb would be required. In Davison v. Gill (c), the Court held that an
order of magistrates was no answer in a collateral proceeding, because it did
not strictly pursue the directions of 13 Geo. 3, and the Court say, that the
omission was material and of substance. The second objection is, that the
order finds the whole highway to be unnecessary, but only stops up that
part of it which is in Milverton parish. Here the exercise of their authority
by the justices, is duplicate and inconsistent with itself. They have no
power to stop up half a road. The justices for each division ought re-
spectively to have viewed the part in their division, and then made a joint
order for stopping up the road. Or the justices for one division ought to
have stopped up the whole road, which it would seem, from the opinion of
Lord Holt^ they might have done {d). Or, if this is a casus omissus^ they
must wait till they obtain further authority from the legislature. The conse-
quence of this partial stopping, if it be of any avail, is, that the parish of Oak
is still bound to repair one half of the road, and Milverton is not bound to
repair the other half.
Bere (and Carrow was with him) contrd. — If it is necessary to have two
orders for the purpose of stopping up two distinct highways, the act itself
' must create that necessity, for certainly no such necessity would exist by
any rule drawn from the common law. And at all events, an order which
provides for stopping up more roads than one^ is not therefore void. If a
count for murder is joined with one for burglary, the indictment is not ne-
cessarily bad, it only affords ground for application to the Court to strike
one out. The very indictment in this case is for non-repair of two distinct
highways, and yet no doubt it is good. An order of magistrates may be
good as to part, though bad as to the other part ; Rex v. Maulden (e). Rex ▼.
Cassan (/). There is no principle, therefore, why an order should not operate
upon two distinct highways ; it may afford a fair ground for appeal on the
S
(a) Ante, 407. (d) 19 Vin. Abr. tit. Siatutee, £. 6, 56.
(6) 10 B. & C. 477. ie) 2 Man. & Ryl. 146 ; 8 B.& C. 78.
(c) 1 East, 64. (/) 3 Dowl. & Ryl. 36.
MICHAELMAS TERM, 1836. 437
assumption that the justices have not done what they ought to have done as King's Bench,
a matter of discretion, but the order is not therefore absolutely void ; in v^v^
matter of law the two questions are quite different. Words infinitely stronger '^**® ^^^^
than those used in this statute do not make the acts done void, but only void" inhabitanu of
able, upon a proper proceeding being taken to set them aside. The objec- Milvbbton.
tions here can only arise under and by virtue of the statute 13 Geo. 3, c. 78,
and there is nothing in that statute to shew expressly how highways are to
be stopped up. In section 19, there is a provision for diverting a highway
and stopping up the old one ; in section 22 the justices are authorised to di-
vert and stop up highways differently circumstanced from those before pro-
vided for. This section is now repealed, but attention has been called to it,
because in the schedule there is no form given for carrying into effect the
provisions of section 22 ; neither is there any which is applicable precisely
to the present case. The Court will not say that the justices ought to have
taken an inapplicable -form, and attempted to adapt it to purposes for which
it was not meant. It is easier and better to construct one, by referring to
the whole act. The practice is not, as stated by the other side, to employ a
distinct order for each distinct highway, but quite the reverse, as appears in
all the cases that have come before the Court. It is true that the marginal
note to the form given by the schedule of 13 Geo, 3, c. 78, says that there
should be a separate order where there are more highways than one to be
stopped up, and these words exist in the statute roll ; but they are only
directory. Words far stronger than these, even in the body of a statute,
have been held to be directory only. Gray v. Cookson {a). So in Hennah v.
Whyman (b), Parke, B. said, that the form of indorsement on a writ of sum-
mons given in the schedule to the Uniformity of Process Act, is only given as
an example. Unless a statute in express terms requires compliance with the
forms given, it will be considered as only directory. The cases of Rex v.
Bawbergk (c), and De Ponthieu v. Pcnnyfeather{d) are authorities on that
point. So if an order of removal be signed by two justices separately,
and in different counties, it is voidable on appeal ; but it is not otherwise of
itself void. Rex v. Slot/old (e). The law which prevails as to settlement cases,
throws some light by analogy upon the present. There, in the removal of a
mother and her illegitimate child, where they have respectively distinct settle-
ments, the order may be quashed as to one, and confirmed as to the other.
The words in the marginal note can only have been introduced by mistake. —
[^Paiteson, J. — The statute roll never has a marginal note.] — It is clear this
never was intended to have a prohibitory effect, or it never would have been
introduced where no one would look for.it. In the late statute it is intro*
duced into the body. That was done to give it the force of an enactment^
which as a marginal note it did not possess. It is objected that the order
recites that the whole road is unnecessary, but stops up only one half; but
neither does that make the order void. Largeness of the recital is an advan-
tage rather than an injury to the parties intending to appeal. The justices
properly stopped up that part only which lay within their own jurisdiction ;
they had no power to do more. It is clear that the act considered this case
(a) 16 East, 13. (d) 5 Taunt. 634.
2 C. M. & R. 239. (f) 4 T. R. 596.
3 Dowl. & RyU 338.
438 TERM REPORTS in the KING'S BENCH.
King's Bench, ^s analogous to that of a road lying in two counties. That appears from the
v^s/^ form No. 16, given in the schedule to 13 Geo. 3, And from the summons.
The KiKo required by section 62, under which the special sessions for the pur-
iDhabitaou of P^^® of stopping up the road must be held, it is evident that the legisla-
MiLV£RTON. ture meant only the magistrates acting for the division to attend. Such also
has ever been the practice. — [Coleridge, J. — In this case there has been a
virtual stopping up of the part of the road lying in Oak ; but it does not
appear that any notices have been given there. The argument therefore
comes to this, that a road may be stopped up without any notices being
given.] — That involves a mere question of fact which it is for the sessions to
determine. If it could be shewn that the road proposed to be stopped up
was useful for the purpose of some other road, that would have been a good
ground of appeal against the order ; but does not make it void in law. On
the other hand, it would be a great hardship to the parties burdened with the
repairs of an unnecessary road, if these means did not exist for stopping
it up.
Lord Denman, C. J. — We are quite clear as to this part of the case, that
the power given by the act is to stop up a whole road, and that no power
exists to stop up a part only. Where the road lies in two distinct jurisdic-*
tions, the justices of those jurisdictions should confer together respecting it,
and if they concur in thinking it useless and unnecessary, they may make an
order to stop it up.
Patteson, J. — I am of the same opinion. The language of 55 Geo, 3,
is sufficient to shew that this order is void. The power there given to the
justices is to stop up a road. In this case they have not stopped up, they
have only narrowed a road ; and that they have no authority under the act
to do.
Williams, J. — The argument used has been, that if the road be not
stopped up in this manner, it cannot be stopped up at all. But that can have
no weight unless it be shewn that some means necessarily musl exist for
stopping it up at all.
Coleridge, J. — All power possessed by justices to stop up roads was
created by act of parliament. No argument therefore can be drawn from
shewing that if not stopped up in this manner, the road cannot be stopped up
at all. There often may be good reason for stopping up the whole of a road,
which does not apply to stopping up the half. It never could have been in-
tended that parties should remain liable to repair as far as the medium Jihim
vicBt and yet not be able to use the road. With respect to the concurrence of
the justices in different jurisdictions, great difficulties might arise about ob-
taining that. I am inclined to think that this is a casus omissus in the act.
Judgment for the Crown.
Bere afterwards submitted to the Court that their decision referred only to
one part of the highway; that of which only one half of the breadth lay in
the parish of Milverton, and determined nothing as to the other part, which
MICHAELMAS TERM, 1836. 439
lay wholly in the parish of Miloerton, to which solely the first count of the A'*"6** Bench,
indictment applied.
Cur. adv. VuU. I'he King
V.
iDhabitants of
Lord Denman, C. J., on the last day of term delivered the judgment of Milverton.
the Court. — The point on which we gave judgment for the Crown applying
to one only of the roads indicted, we have since had to consider the case as
relating to the other. The prosecutor contended that the order for stopping
up the road in question was void, because it stopped up also other roads
perfectly distinct from it ; and we are of opinion that this objection must pre-
vail. The power to stop up roads is given to justices by statute ; it is a power
unknown to the common law, and must be executed strictly. The 55 Geo. S
enacts, that the ways and means used for stopping up roads shall be the same
in all respects as those prescribed by 13 Geo. 3, for widening or diverting
them. The provisions relative to these means appear in section 16, and in
the schedule of that act, Nos. 16, 17, and 18, these and the form of the order
No. 18, for stopping up highways, clearly refer to one highway only. The
parliament roll itself also contains a marginal note to this form, directing a
separate order to be used for each highway intended to be stopped up. This
note, since it is found on the parliament roll, must be considered as part of
the act, and receive its due weight accordingly. But without it, the language
of 55 Geo. 3, constantly referring to one highway, one order, one notice, ap-
pears sufficiently to shew that the necessary construction of the statute re-
quires a separate order for tlie stopping up of each individual highway. Of
this opinion also was Lord Kenyan in Davison v. Gill{a)f and Jjord Tenterden
in Rex v. Justices of Kent {h)^ which latter decision we recently (c) thought
ourselves bound to support.
Judgment for the Crown.
(a) 1 East, 64. (h) 10 D. & C. 477. (c) Eex v. JuUim o/Middlties, ante, 407.
The King v. The Inhabitants of the Lower Division of
CuMB£RW0RTH and Cumberworth-Half.
November 22nd.
J NDICTMENT for non-repair of a highway. The statute 6 G. 4, c. cxxxviii. An act of parUa-
reciting that the making of a turnpike road, and of several branches in "^inTrosTe*^
the directions there stated, would be " a great advantage and accommodation make a main road
to the inhabitants of the manufacturing towns and places in the neighbour- bren*Jes!* They
hood and to the public at large,** provided for the making of such road m*"** ^« ™*>"
and branches, and empowered the trustees to erect toll-bars upon any part branches but
of the road where they should think proper ; but provided, that they should oue-.—HeM, Uiat
not take from any person passing along the whole line of such roads and branches by prescription to
more than three tolls in the same day. The trustees were also empowered ^^^", *." '"8'?' ,
• . * ways lying within
to make two diversions, and the whole line, both trunk and branches, was it, and Uirough
to be called the Wakefield and Denby Dale Road. At the trial before i^^JfrLTpmld,
Parke, J. at the Yorkshire Spring Assizes, 1835, it appeared that the road was not Uatie to
indicted was part of the main road contemplated by the act, and lay in the u*Ifi*uhrremain-
district of which the defendants were inhabitants, and that such district was ine branch was
liable by prescription to repair all highways lying within it ; it also ap- " *** *^^"^
440 TERM llEPORf S in the KING'S BENCH.
Kiiig*s Bench, peared, that one branch contemplated (the Pikcley branch) had not been
^^^/^^ made. The defendants relied upon their not having adopted the road in
The King question, and also upon the non-making of the Pikeley branch. Verdict for
Inhabitanu of ^^^ crown, with leave to move to set that verdict aside, and enter a verdict
Cumber woiiTii. of not guilty. In Easter Term, 1835, «/. B. Greenvoood obtained a rule nin
to that effect, against which,
Cresstvell and /. L. Adolphus now shewed cause. — It will be contended on
the authority of Rex v. Cumberworth (a), that this indictment must fail^ but
that case does not apply. There the main trunk was not completed ; and
the decision relied on was Rex v. Hep'worth{b\ which was founded on the
somewhat exploded doctrine of adoption. Lord Tenterden expressed his
fears that if the parish were held to be liable before the whole road was made,
they might have to repair what was of no use to the public. But his lord-
ship's fears were not warranted, for if a road is of no use to the public, there
is no danger that they will adopt it. The better opinion now is, that if the
public cannot be excluded from a road, then it is a public road, and the
parish must repair it. Such is the case with this road, the public cannot be
excluded because the trustees have not done all that was required of them.
Suppose an action of trespass brought against a person for passing along this
road, merely the circumstance of its being used by the public would furnish
him with a sufficient ground of defence. — [Coleridge, J. — Who is to give the
public the right ? Generally these road acts are limited to twenty or thirty
years duration. Suppose this time passed without the trustees having com-
plied with the provisions of the statute, how are the public then to obtain a
right ? Parke, J. in Rex v. Mellor (c), expresses an opinion that the right
would be lost in such a case.] — If the trustees had purchased the ground and
laid it open, that would have been a dedication to the public. But here the
main road, which is a thing that may be complete in itself without reference
to the branches, has been finished. It will be insisted that the whole forms
one road ; but if so, how is it to be described in an indictment, what are
to be considered as the temtini ? It is true that the act so styles it, but
that is not a local description, it is only indicative of the district subject-
matter over which the trustees are to preside. In Rex v. Edge Lane {d) also
the main road was not completed, and there, though the non-completion of the
branch roads was much urged in the argument of counsel, yet all allusion to
that as a ground of their judgment was carefully abstained from by the Court.
Rex V. IVest Riding of Yorkshire (c) was decided upon an act of parliament
containing particular words, but still the principle is the same as in the
present case. There the Court expressed an opinion that the main line
upon its completion might become a public road, though the branches were
not complete. If the contrary doctrine prevail, the public would not be
allowed to use any part of the road before every small branch was com-
pleted and every bridge widened pursuant to the statute ; because the right
to use can only follow and attend the right to have repaired. The performance
in all these cases is to be taken distributively ; the public may be considered
as divisible, and when a portion of work is done, which is beneficial to one
(a) 3 IJ. cc Ad. 108. (c) 1 B. & Ad. 32.
{h) Cited in Uex v. Cumberworth, 3 B. & {d) 1 Har. & Wol. 737 ; 6 Nev. Ac Man. 81.
Ad. lOd. (e) 5 B. & Ad. 1003 -, 3 Nev. U Man. 86.,
MICHAELMAS TERM, 1836. 441
part of the public, then that part may be considered as dedicated, and the Kings Bench,
district in which it lies as liable. It may perhaps be contended that the ^^^v^
principle laid down in cases of canal companies applies here, but there the The^KiNo
object is mere private speculation for the profit of individuals, who are there- inbabiunts of
fore held strictly to the performance of their bargain ; Blakemore v. The Cvmbebworth,
Glamorganshire Canal Navigation (a). — [Lord Denman^ C. J. — ^The trustees
of a road are allowed to do certain things on certain conditions ; that is much
the same principle.] — The object of the trustees of roads is the general
benefit of the public, Bussey v. Storey {b) ; therefore an adverse construc-
tion cannot fairly be applied to them. It is said that the trustees enter into
an undertaking ; there is no express undertaking. And in all cases of implied
undertakings, reciprocity is the principle by which they are regulated, and
that is all that is now asked for. If part of the road has not been completed,
as to that part no tolls can be collected ; as to the part which has, the trus-
tees have a right to call upon the defendants^ who have enjoyed the benefit,
to take their share of the onus.
J, B. Greenwoodf conird, — The defendants are not liable until every part of
the whole line contemplated by the act has been made. The preamble shews
that the branches were considered of equal importance with the main road,
and the language of the act that the whole was to be considered as one road.
This language is to be construed most strictly against the parties applying
for and acting under the act, and most favourably towards other parties
affected by it. Blakemore v. Glamorganshire Canal Navigation, Rex v.
Greenwich Railway Company (c). Several provisions of the act go to shew the
same thing. If the trustees chose to erect three toll bars upon the main line
of road, they might, by the construction contended for, commit a fraud upon
the public, because the party paying the three full tolls would not be
enabled to enjoy the benefit contemplated, of travelling along the whole line
of the roads and branches. The power given to the trustees to make diver-
sions, if they shall think proper j shews that where the legislature did intend to
leave any thing to the discretion of the trustees, it could use apt words for the
purpose. As to the working of the branches, the enactment is peremptory. In
Rex V. West Riding of Yorkshire (d), the act referred to contained a special
clause providing for the opening of the roads contemplated respectively, and
authorising the granting of a certificate upon their being respectively com-
pleted. Upon that clause all the arguments of counsel and the observations
of the Court proceeded. If such a clause had been introduced here, then no
doubt the parts might have been taken distributively. But no such con*
struction can be supported without it. Besides, it is very probable that persons
living at the ends of these contemplated branches might have opposed the
passing of the act, had they thought that the trustees did not intend to com-'
plete them. The construction of the branches might have been the main in-
ducement to their consent to the undertaking, and may have caused its adop«
tion by the legislature.
Lord Denman, C. J. — It appears to me that we ought to adhere to the
(a) 1 Mylne & Keeoe, 164. (e) 4 Ne? . & Man. 458
ib) 4B.ficAd.98j 1 Nev, & Mtn. 689. (rf) "
6 B, & A4 1008} 3 Nfv. « Mn. 86.
442 TERM REPORTS in the KING'S BENCH.
Kine's Bench, authority of Res v. Cumbcrworth {a) and Rex v. Edge Lane (6). No doubt
y^^/^ very strong distinctions may be drawn between cases where what has been
The King left undone forms part of the main road, and there has been an adoption by
I h w\A ts f P"^^'^ yxser^ and where it forms one of the branches only. But we should
CcMDBRwoRTH. Create much inconvenience if we were to enter into inquiries upon such
points. I think it is sufficient to say, and in this the authorities support me,
that it is by virtue of their whole undertaking the trustees have become pos-
sessed of their powers, and they are to execute that undertaking entirely,
before they call upon the parish to repair the road made. In this case the
whole main road was completed ; in the former case of Rex v. Cumberwarih (a)
there was a part of that unfinished, but there was the same adoption and user
of what was done in the former cases as here, therefore the mere adoption
and user by the public in those cases would have been as good to make them
liable as the user by the public or the parish in this. We cannot distinguish
of course between the number and importance of the branches that have
been done and those undone. If any part is left undone, we must consider
the whole as imperfect. I think therefore we are bound to say that the
verdict for the crown must be set aside, and a verdict entered for the de-
fendants.
Patteson, J. — I am of the same opinion. We must adhere to the princi[^
of former cases. I am afraid of entering into inquiries aa to the distinctions
between one case and another. In all these local acts there is a species of
bargain, tlie trustees undertaking on their part to make all the roads. If
therefore they neglect to do so, we are bound to say that they have not com-
pleted their contract* That is the principle of Rex v. Cumbersoortk (a),
and it apphes to this case. And though our decision may be inconvenient
to many persons, we cannot help that ; we should create much litigation if we
were to inquire into the existence of those distinctions in the manner that has
been suggested.
Williams, J. — I am of the same opinion, upon the principle of the autho-
rities referred to. In this particular case the completion of the whole line,
with all its branches, must be considered as a condition precedent to the
liability to repair the road in question. It is impossible to say on what terms
parties have been induced to permit the line of road to pass through their
lands. I cannot say that they did not abstain from offering any resistance to
the passing of this act, because of some additional benefit which they expected
to derive from the completion of the branches.
Coleridge, J. — I am of the same opinion. The arguments on behalf of
the crown were very specious, and at first sight seemed to present a great
distinction between this and the former cases ; but when I asked my-
self what right the trustees had in this case to burden the parish with repairs
of this road, or what right to take the land from the landowners, I could not
find any principle to support such distinctions. The only way to answer those
questions is, to consider the circumstances under which this act of parliament
was obtained. It is virtually, as in all these cases, a bargain by the trustees on
(a) 3 B. £( Ad. 108. (6) 1 Bar. & WoL 737 ; 6 N«?. & Maa. 81.
MICHAELMAS TERM, 1836. 443
one side, and the legislature on behalf of the public on the other ; the Hingis Bench.
trustees being entitled to take the land and enjoy certain powers on condition v^v^
of their performing certain undertakings. According to the distinction at- ^^^ ^'^^
tempted to be drawn, the main line of road being completed, the trustees inKabiunU of
have in this case done enough to entitle themselves to take away the land Cvmberwortb.
from the owners and to burden the defendants with the repair of that line.
But why may not the branches have been the sole consideration for allowing
the main road to be made ? The new line may have been desirable only on
their account, and persons, owners of land in the parish through which this
line went, may have made no opposition to the passing of the acts simply
because the trustees undertook to make or improve these branches. It is
not at all impossible that such was the case. I cannot therefore lay down as
a principle that which possibly would work great injustice. The bargain
was to execute the whole of this undertaking, and until the trustees have
executed every part of that whole, they cannot become entitled to throw any
burden upon the public, or any part of the public.
Rule absolute.
WooDHAM V. Edwards.
November 22d.
/tSSUMFSIT against the defendant as the acceptor of certain bills of A»iwnp$uj^g9AD»t
•^ exchange. PleOy that after the accepting of the said several bills of ^^^^^^tu^^xi
exchange, and aAer the time for the payment thereof had elapsed, to wit, &c., buu of exchange,
the defendant, being at that time resident in that part of the united kingdom ^fbuiTwere
called Scotland, and subject to the laws thereof, in consideration that certain accepted and be-
persons being or supposed to be creditors of the defendant should forbear to defondant, reli-
sue or molest the defendant in respect of any debt, monies, or claims, before *}^^^ ^ "^^ *"^
and at that time due or supposed to be due and owing to them, or any of ^AaOand, L con-
them, from the defendant, made his certain deed or writing ; by which said »»d«[»iion that hu
' . ' o » i7 creditors ahould
deed or writing, duly stamped and attested according to the law of Scotland^ forbear to sue, by
and shewn to the Court here, the defendant did alienate, assign, dispose, a"cor!u^g*tothe
convey, and make over to and in favour of •/. Z>., and to such person or law of Seotimnj,
persons as might be thereafter appointed by his creditors as trustees, to and ^Mr^operty^
for the use of his said creditors in the said deed mentioned, and of other ^^^i° Saniand to
creditors whom the said trustees should assume into the benefit of the said of hucreditors;
disposition, all and sundry his moveable croods, &c., debts owincr to him, and ^** "®^*'* °^ *'*
I «. 1 • 1 1 1 1 It 1 . . deed was given to
Other ettects, and in general the whole moveable estate presently a[^rtammg the plaintiff ; that
and belonging to him, and of whatsoever nature and denomination, situated '^^^Jlej"^'*^*'
within the kingdom of Scotland, together with the lease of his dwelling- wriUng, valid ac-
house at CUmnster, to and in favour of the said trustees, and of such other [°^o7^rw
person or persons as might thereafter be appointed by his said creditors, as if* R- »> hu at-
trustees as aforesaid, whom he did thereby surrogate and substitute in his S'SIe deed^M^
full right and place thereof, in lieu of and in full satisfaction and discbarge receive dividends;
of all the said debts, monies, and claims, due from him or payable to the ^uci^'afd ut
therein; that
other creditors accepted tlie assignment in satisfaction of their debts ; that since the asugnment funds have
become available under it sufllcieut to pay all the creditors ; that all the proceedings were in conformity
witli the law of Seotlmni : by reason of which |»«au»e», and the effect of thoM laws, the defendant has
become discharged of tlie causes of action. Rtptieation, that the defendant has not become discharged
m0^ Hfmmd.'^Ut/d, first, that by thte replication th« law of 9coii&ni was put in issue ; secondly, tliat the
plea did not disdoM a d«feiic« at j&v'm*1*w.
444 TERM REPORTS in the KING'S BENCH.
King*s Bench. ^^ Creditors by the defendant; and that notice of the execution of the said
^«^/^ deed or instrument of disposition was given to divers persons, being or sup-
WooDMAM posed to be creditors of the said defendant, as well in Scotland as also in
Edwabds. England^ and among the rest to the plaintiff, who, by his writing, signed by
him, and which said writing was by the law of Scotland valid and effectual in
that behalf, did nominate and appoint one H, it. as the attorney of the
plaintiff on that behalf, and as such attorney, authorised and empowered him
to concur in and adopt the said deed, and to receive the dividends which
might or should become due by or in respect of property, by virtue of the
said assignment ; and that the said H, R,, by virtue and in pursuance of such
nomination, appointment and authority as aforesaid, did nominate and ap-
point and adopt the said deed, and the provisions thereof, for and on behalf
of the said plaintiff, and did act thereon as the authorised agent of the said
plaintiff, and was appointed one of the committee chosen by the said cre-
ditors for the payment and distribution of the estate and effects of the said
defendant, and attended meetings of the creditors under the said deed, and
voted and acted as the representative of the said plaintiff in the matters
thereof in that behalf; that divers other persons, being creditors of the
defendant, to wit, &c., in consideration of the execution of such assignment
of the goods, &c. of the defendant, as aforesaid, did agree to accept the
assignment of the goods, &c. of the defendant, and did accept the same
in lieu of and in full satisfaction of their respective debts and claims ; and
that from the time of executing the said trust-deed by the said defendant,
and the adoption thereof by the plaintiff as aforesaid, the defendant hath
not at any time accepted any other bill or bills of exchange, drawn upon him
by the said plaintiff, and that the plaintiff has no cause of action or demand
whatsoever against the said defendant, except the supposed causes of action
in the declaration mentioned, and which said several causes of action accrued
before the execution of the deed by the defendant, and the adoption thereof
by the plaintiff, as aforesaid ; and that since the executing of the said trust-
deed, as aforesaid, by the said defendant, and the adoption thereof by the
said plaintiff, as aforesaid, certain funds, goods, and chattels, of the said
defendant, of the value of 2000/. and upwards, have become available under
the trust-deed for the benefit of the creditors of the defendant, and for the
benefit (among others) of the plaintiff; and that the said sum of 2000/., so
made available as aforesaid, is sufficient to pay and discharge all the debts
of the said defendant in the said deed mentioned, and among the rest the
debt of the said plaintiff; and that all and singular the proceedings afore-
said were pursuant to and in conformity with the laws of Scotland aforesaid,
whereby, and by reason of the said several premises, and by effect of the
aforesaid laws, the said defendant hath become absolutely discharged in
respect of his person, lands, goods, and chattels, from the several causes of
action in the said declaration mentioned.
Replication^ that the defendant has not become, nor is discharged, in respect
of his person, lands, goods, &c., from the several causes of action in the
declaration mentioned, nor any of them, nor any part thereof, in manner and
form as the defendant has thereof in his plea alleged.
Conclusion to the country, upon which issue was joined.
^^ At the trial before Lord Denman, C. J. at the Middlesex Sittings afler
^^^ Hilary Term, 1835, the defendant contended that no fact was put in issue by
1
MICHAELMAS TERM, 1836.
446
the replication, and that therefore he was entitled to a verdict upon the KingU Bench,
pleadings. He offered no evidence. The plaintiff contended that evidence
should have been given of what was the law of Scotland, His lordship
directed a verdict to be entered for the defendant, reserving leave to the
plaintiff to move to set that verdict aside and enter a verdict for the plaintiff;
and in Easier term, 1835, a rule nisi was obtained ; against which
WOODBAM
r.
Edwarps.
Erie and Sewell now shewed cause. — The plea contains a statement of
several facts, from which an inference of law was to be drawn, with an aver-
ment at the end, that the defendant was thereby discharged. The replication
having passed by all these facts without putting them in issue, and merely
averring that the defendant was not thereby discharged, amounts merely to
a species of general demurrer. The Scotch law is only averred in the plea
so far as relates to the validity of the execution of the deed. If the plaintiff
had intended to dispute that, he should have replied de injurid^ and then the
defendant might have come down to trial prepared to prove it. But in
truth, the averment in the plea would have been just as good if all the state-
ment about the laws of Scotland had been struck out. The facts disclosed
amount to a discharge under the English law also. After an agreement such
as it is admitted has been entered into, the party who has come in under it
cannot afterwards bring any action even by the English law. If he could,
he would thereby commit a double fraud, one against the debtor, who, by
the agreement, has been placed in a worse situation than he was before ;
Butler V. Rhodes {a)^ Brady v, Sheil(b), Heathcote v. Crookshanks (c), Seager
v. Billington (d); and the other against the creditors who have entered into
the agreement; Steinman v. Magnus {e)^ Woody, Roberts (f), Oughton v.
Trotter (g). The other side will contend that the replication traverses the
facts stated in the plea, and that the discharge by the Scotch law is a material
fact put in issue. But that is not so ; unless it appears that the virtute
cujus contain a mixed matter of law and fact, it is not traversable ; Lucas v.
Nocfcells (A). It is laid down by Bayley, J. and Littledale, J. in that case,
that where those words introduce a consequence or inference of law from
the preceding matter, they are not traversable, though the preceding matter
is. However, here the plea is complete without it, and the facts admitted
by the replication amount to a good defence at English law. The defendant
is therefore entitled to judgment.
SmirkCf (and Peacock was with him,) contrd. — The replication amounts to
and involves a denial of a material issuable fact averred by the p\esL. If the
issue raised had been only as to what was the Scotch law, still that would
have been a proper question for the jury. But, in truth, it involves a mixed
question ; first, whether the Scotch law is such as it is averred to be ; se-
condly, whether, supposing it to be so, the defendant is therefore entitled to
his discharge in this action. But suppose all the statements about the
Scotch law were struck off the plea, as proposed by the other side, then there
remains nothing which amounts to a defence under the English law. There
(a) 1 Esp. 236.
(fc) 1 Camp. 147.
(c) 2 T. R. 24.
(d) 6C.&P. 456.
(«) 11 Eatt, 390.
(/) 2 Stark. 417.
(g) 2Nev. &MaD.71.
W 10 Bing. 157.
ii
446
TERM REPORTS in the KING'S BENCH.
King*i Bench. ^ nothing to shew a release by the plaintiff, nor an executed accord and
V^v^ satisfaction ; nothing which could be sued on by the law of England ; nothing
WooDHAM put in place of the cause of action lost. (He was then stopped by the
Edwards. Court.)
Lord Denman, C. J. — There is no doubt but that by this replication the
law of Scotland is put in issue. Part of the traverse is a traverse of the law
of Scotland, But then it has been argued, that it is of no consequence whe-
ther or not issue has been joined upon the law of Scotland^ because enough
appears upon the plea to constitute a good defence under the English law.
But that is not so. It does not appear that any thing has been done, which,
under the English law, would prevent the plaintiff or any other creditor from
suing the defendant for his debt. A verdict, therefore^ must be entered for
the plaintiff.
Patteson, J. — This is an application to enter a verdict for the defendant.
It is quite clear that the Scotch law is put in issue by the pleadings in this
action, and the Scotch law being matter of evidence, the defendant was cer-
tainly bound to produce some. He did not produce any, and the plaintiff
is therefore entitled to the verdict. But it has been said that we may
reject all that part of the plea relating to Scotch law as unnecessary, and that
enough remains to shew a good defence under the English law. I doubt if
that could be done afler a traverse such as the present. But even if it
could, I think the plea shews no defence under the English law. It states —
(here his lordship read part of the plea.) Now we have no such law as this
in England ; many of these terms have no meaning that we can recognise ;
they therefore necessarily must, in order to make them intelligible^ be
referred to the Scotch law, which may be traversed, and has been traversed
here, and has not been proved. There is nothing here which shews that the
plaintiff had done any thing to injure or defraud either the defendant or any
other creditor. Nothing on the face of the plea can be held to amount to a
good defence at English law.
Williams, J. and Coleridoe, J. concurred.
Rule absolute.
The King v. The Overseers of Westowe.
At die hearing of f^^^'^SfVELLy ou behalf of the overseers o£ Scarbot-ough, had obtained a
an appeal against
an order of re-
moval, the ap-
pellants, at the
instance of the
respondents, pro>
duced an assign-
ment of the
pauper as appren-
tice to a master in
the appellant
parish, but ob^
rule calling upon the overseers of Westowe to shew cause why a manda^
mus should not issue to them to produce at the Stamp Office to be stamped,
the assignment indorsed on an indenture of apprenticeship, under which
a pauper had been assigned and served in Westowe* It appeared that
Westowe had appealed against an order removing the pauper from Scarbo^
rough. At the hearing, the respondents required the appellants to produce
the assignment, which they did, but objected to its being read in evidence,
on the ground of not being stamped. The Court allowed the objection,
jected to its being
given in evidence by the respondents, as it was not stamped. Tlie Court of Quarter Sessions respited tlie
^^peal, that the respondents might apply to the Court of iTtiigV Bmtch for a mandamus io Uie respondents to
^JB^face tlM assignment to be stamped i-^Ueli, that tlie instruueot was not a document of a public nature,
^^MMno mtmimmt would lie.
MICHAELMAS TERM, 1836. 447
but respited the appeal, to afford the respondents an opportunity of making Kwg*s Bench,
this application. s^s/^
The Kino
Bliss, now shewed cause. — The present is not analogous either to those j},^ Overseers
cases where the Court orders the inspection of an instrument in the hands of of Westowk.
a third party, or where it directs one of the parties in a cause to pro-
duce an instrument for the purpose of being stamped. In the first case,
a mandamus for inspection only lies at the instance of some one of those per-
sons for whose use the instrument is kept; The Mayor of Southampton y.
Graves (a). Such was the ground of Lord Tenterden's judgment in Rex v.
Bishop of Ely (b), where he distinguishes a bishop's register from parish
books, which he says are kept for the use of the parishioners only. And cer-
tainly no one has a right to inspect them who claims adversely to the parish,
Cox V. Copping (c), Rex v. Smallpiece (d). But these parties are adverse and
also strangers to the parish of fVestowe. If this application prevails as against
parish ofHcers, it must prevail also as against individuals ; and a party may
be compelled to produce the conveyance or demise of an estate, if it happens
to affect the settlement of a pauper. Neither would the Court order this in-
strument to be produced, even if a cause were pending between the parishes
of fVeitowe and Scarborough. Three things must concur before the Court will
interfere. The party applying must be a party either actually or in interest
to the instrument: the action pending must be on the instrument itself:
and the party holding, must either actually or impliedly hold as a trustee to
produce ; Ratcliffe v. Bleasby (c), Street v. Brown (/), Lawrence v. Hooker (g),
Cocks v. Nash{h), Travis v. Collins (i); none of these requisites exist here.
The instrument is between third and fourth parties ; Scarborough has no in-
terest in it, for the interest must be one of title, not of convenience ; must be
in the instrument itself, not arising from it in consequence of some wholly
collateral matter, such as the service here. This case therefore does not re-
semble that of Bateman v. Phillips (A:), where the reason given by Mansfield,
C. J., for the interference of the Court, was, that *' the plaintiffs were as much
parties to the paper as if they had signed it." The question in dispute also
is upon a matter collateral to the instrument. Lastly, admitting that the
overseers do hold as trustees, still it must be shewn that they hold as trustees
for Scarborough. The Court will not act on the mere ground that the party
holding is a trustee. This principle is laid down by Alderson, J. in Cocks
V. Nash (A).
Cresswelly contrd.'^The question is, whether tlie overseers of Westowe have a
right, for their own private advantage, to withhold this instrument to the in-
jury of other parties. No other way exists by which that injury can be
redressed but by writ of mandamus; the Court will therefore grant it. It
has been said, that the Court will not interfere unless a cause is pending be-
tween the parties, but that is not so, Rex v. Bishop of Ely (b). And here the
instrument is held in trust for, among others, the party making this applica-
(a) 8 T. R. 590. (/) 6 Taunt. 302.
(6) 8 B. & C. 112 ; 2 Man. & Ry. 127. (g) 6 Bing. 6.
(c) 1 Lord Rayni. 337 ; 5 Mod. 395. (A) 9 Bing. 723.
(d) 2 Chit. R. 288. (0 2 C. & J. 626.
(e) 3 Bing. 148. {k) 4 Taunt. 157.
448
TERM REPORTS in the KING'S BENCH.
The King
V,
The Overseers
of Westowb.
King*t Bench, tion. When the legislature has determined that parties shall gain a settle-
ment in a particular manner^ that settlement becomes a public question, and
all persons are interested in the inspection of instruments relative to it. The
overseers of Westowe had no right to possess themselves of this instrument ;
but having done so, they hold it as trustees for every one who has occasion
to inspect it. Inspection was refused in The Mayor of Southampton v. Graves (a),
on the ground that the instrument in question was a muniment of title ; no
such reason exists here. This is not a muniment of title, no one can be in-
jured by its production, and if withheld, great injustice will be done.
Lord Denhan, C. J. — This rule must be discharged. Mr. Cressweil was
obliged to rest his argument on the ground that this is a document of a
public nature ; but that is a character which certainly it does not possess.
Patteson, J. — The authorities which have been cited chiefly relate to
cases where parties have claimed a right to inspection on the ground of
possessing an interest in the document. Those authorities abundantly shew
that the inhabitants of Scarborough have no such interest as to entitle them
to call for the production of this assignment. Mr. Cressweil was therefore
obliged to rest his claim on the ground that this is a public document ; but
no such ground exists. It cannot be said, that the public are interested in
the inspection of it, therefore no injustice will be done to them by withhold-
ing the instrument. It cannot signify to the public at large, how or where
a pauper is settled.
Williams, J. concurred.
Rule discharged.
(fl) 8 T. R. 690.
November 24th,
Doe d. Poole and another v. Errington.
A defendant
gave due notice to
the attorney for
the plaintiff to
produce a certain
document. At
the tiial the at-
torney attended y
and then for tlie
gJECTMENT, tried before Parke, B. at the Summer Assizes held July
28th, at Nexocasile, The lessors of the plaintiff claimed as devisees
under the will of William Ord, The defendant proposed to shew that Wil-
Ham Ord had only an estate for life, and that the defendant was his heir.
The lessors and their attorney lived seventeen miles from Newcastle^ and,
three days before the trial, the defendant gave them notice to produce cer-
tiiatthTd!Icument **^" indentures of lease and release, necessary to shew his title. They then
gave no information where the deeds were. The clerk to the attorney of the
lessors attended at the trial, and then proved that the deeds in question had
been sent two months before the trial to London, for the purpose of a Chan-
cery suit. The learned judge refused to receive secondary evidence of the
deeds, and directed a verdict for the plaintiff, giving leave to the defendant
to move for a new trial. Upon affidavits of these facts, and that upon appli-
'^lintiTsTffidl'?* ca'^0" ^^"g ^^^^ •^"^y 3^^^» to t^^e agent in London of the attorney for the
vita stated facta lessor of the plaintiff, he stated that the deeds were not in his possession,
which, if proved,
were an answer to the defendant's case, even if the document had been produced. The defendant's affi-
davits stated he had a good defence on the merits. The Court granted a new trial.
was not in his
possession,
whereupon the
defendant was
unable to prove
his case, and
the plaintiff
obtained a verdict.
Upon a motion
MICHAELMAS TERM, 1836.
449
Doe d. Poole
and another
V,
EitRINOTON.
and also that the defendant had a good defence upon the merits. Cresswell King*s Bench.
having obtained a rule nisi,
Colimarty Ingham, and Wightman, now shewed cause against the rule, upon
affidavits stating, that part of the land in question was conveyed by the in-
dentures under the trusts of the will of one Elizabeth Armstrong, and that by
virtue of them WilUam Ord entered upon such part, and also entered upon
all other lands that Elizabeth Armstrong died possessed of^ and remained in
possession of them till his death, November 1832. That on his death, there
being doubts as to whether William Ord had an estate for life or in fee, and
as to whether or not the defendant was, as he stated, his heir, an arrange-
ment was made to divide the property in equal moieties between the defend-
ants and the lessors of the plaintiff. That in pursuance of such arrangement,
the defendant was let into possession of all the land in question^ but afterwards
declined to' complete the arrangement. That the lessors of the plaintiff are
now prepared to shew that the defendant has no claim whatever to any of
the property ; and that at the trial the defendant offered no evidence of
title to that part of the land not comprised within the indentures. — It is con-
trary to the practice of the Court to allow a party who has got into posses-
sion under an arrangement, to contest the title of the party admitting him,
till he has put such party into the same situation as he was in before the ar-
rangement ; Doe v. Baytup (a). That case was determined on the ground that
a tenant shall not be allowed to dispute his landlord's title ; but here the
same principle applies. Here the defendant has got into possession under
an arrangement which has never been fulfilled. — [Lord Denman, C. J. — That
would have been a good case for you at the trial.] — The indentures not being
produced, a reference to it became unnecessary. It is now offered in answer
to this motion. It was impossible to produce the indentures at the trial.
Under the circumstances the party has no claim to the indulgence of the
Court, he should be put to his ejectment.
Cresswell. — There was no suggestion of the existence of this arrangement
at the trial ; the case was decided wholly on the ground of the non-produc-
tion of the deeds, and his lordship said, that he should not give possession
until after this motion was made. The affidavits on the other side do not
swear that the lessors of the plaintiff are not in possession of the full moiety
of the land. The behaviour of the lessors was most deceptive. When ap-
plied to for the deeds, they allowed the defendant to go to trial, under the
full persuasion that they would be produced. Had the defendant been duly
informed be might have applied to have the trial postponed.
Per Curiam(b), — We are of opinion, that under the circumstances this
rule must be made absolute.
Rule absolute.
(fl) 1 Har. & Wol. 270 ; 3 Ad. & El. 188. (b) Lord Der,man,C. J. Palteson, & Williams, Js.
VOL. II.
OG
450
TERM REPORTS in the KING'S BENCH,
Khg*s Bench,
November 24th,
A rule nut fur a
criminal informa-
tioD was diacharg-
ed, upon tlie affi-
davit of a person
swearing to the
truth of the libel.
Upon subsequent
affidavits shewing
the entire false-
hood of the former
affidavit, that tlie
person making it
had been indicted
for perjury, a true
bill had been
found, and that
he had absconded,
the Ck>urt re-
opened tlie rule
which had been
discharged, and
made it absolute.
The King v. Eve and Parley.
TN Easter Tenii a rule nisi had been obtained for a criminal information
against the defendantSi the printer and proprietor of the Satirist news-
paper, for certain statements which appeared in that paper relative to a Mr.
Digby, The statements charged him, among other things, with cheating at
cards. That rule was aflerwards discharged, upon the affidavit of a person
named Shepherd^ who swore that he was personally acquainted with Mr.
Digby, had been an eye-witness of the conduct imputed, and had himself
been cheated at cards by Mr. Digby,
Sir J. Campbell, A. G. in this term applied for a rule nisi, calling upon the
defendants to shew cause why the rule, which had been before discharged,
should not now be re-opened. The application was supported by affidavits
shewing, that upon an interview being obtained between Mr. Digby and
Shepherd, the latter avowed himself to be wholly unacquainted with Mr.
Digby, and that, upon being examined upon cross-interrogatories, he had
contradicted his affidavit in every particular, denying that he had ever known
Mr. Digby, or ever made an affidavit in opposition to the rule for a criminal
information. The affidavits also stated that Shepherd had been indicted for
perjury, a true bill had been found, and he had absconded ; and that the
affidavit of Shepherd was in the handwriting of a person connected with the
Satirist, and that he had formerly lived in the employ of a person connected
with that paper. There was also an affidavit by Mr. Digby denying the con«
duct imputed to him, and stating that he had never used unfair play upon
any occasion whatever. There were also various affidavits establishing the
honour and integrity of Mr. Digby's character. The Court granted the rule,
at the same time intimating that the affidavit shewing the connexion of Shep'
herd with the defendants, tliough very proper, was unnecessary.
Thessiger and Kelly now shewed cause against the rule.-^Parties will not
be allowed to renew their application on affidavits simply contradicting facts
before established to the satisfaction of the Court. And even admitting the
falsehood of Shepherd's affidavit, still the Court will not re-open this rule,
unless the defendants are clearly shewn to be connected with him, so as to
become participators in his fraud. It is a settled practice that no rule,
especially in a criminal matter, will be re-opened, unless it has before been
defeated by the fraud or falsehood of the defendants themselves. That is
not shewn to be the case here. If the Court refuse the application, Mr.
Digby may still, if he pleases, proceed by indictment.
R, V. Richards, on behalf of Eve, read an affidavit stating that he had, long
before the publication of the libel, ceased to be the printer of the Satirist.
Lord Denman, C. J. (without hearing Sir J. Campbell, A. G., with whom
were Wightman and /. W, Smith, at length.) — We are extremely jealous of
doing any thing upon the simple ground that the former affidavits were un-
MICHAELMAS TERM, 1836.
451
true. Such a course would lead to an inquiry by affidavits upon affidavits,
inconvenient in itself, and for which this Court is wholly unsuited. But the
circumstances of this case are so very peculiar, so unlikely to recur, that we
do not think we are establishing a precedent that will be injurious. Here a
person, calumniated in the grossest manner, comes and successfully vindicates
himself from^all imputation ; the rule which he obtains is then met by an affi-
davit of Shepherd, vfho says that the prosecutor has actually cheated him per-
sonally at cards. It is therefore discharged. Upon further inquiry it
now appears, that though there is a person of the name of Shepherd, he has
falsely sworn to his having had any opportunity of knowing these facts, even
if they ever did exist. Upon this, these defendants are called upon to shew
cause why the rule should not be re-opened, and in the meantime the person
calumniated has preferred an indictment for perjury against Shepherd, who
has absconded. In answer, the defendants do not say that they had any
other information to induce them to believe that their statement was true.
They merely say, that a person who used the name of Shepherd came and told
it to them, and they afterwards obtained his affidavits stating that Mr.
Digby had cheated him at cards. The statement must surely be considered
as one made by themselves. They acted upon it ; they inserted it in their
paper upon the authority of a person who has since made an affidavit
entirely false. It seems to me therefore that this rule having been dis-
charged on that affidavit, there is ground enough for us to say, that Mr.
Digby should be placed in the same situation in which he would have been
if that affidavit had not been produced.
Rule absolute (a).
King's Bench,
The Kino
V,
Eve and
Parlby.
(o) See TayUrr v. Sliiigo, ante, 327.
Doe d. Burgess and another v. Thompson.
pJECTMENT for freehold and copyhold lands in the county of Cawin^c,
tried before Tindal, C. J. at the last assizes, when the following facts
were proved : —
In 1 786, William Thompson became possessed of the property in question.
1 807, James, son and heir at law to ff^'tlliam, was put into possesision of
the lands by his father on tlie occasion of his marriage, and continued in the
occupation of them till 1831, when he died, upon which, first his widow, and
then his son and heir at law, the defendant, entered.
183.3, Wtlliam Thompson made his will, devising "all his lands" to the
lessors of the plaintiff, in trust to sell the same, and died in the same year.
They sold the copyhold lands to 5. T,, who was immediately admitted.
1836, in April, S, T, made a conditional surrender to them.
1836, in July, they were admitted " at a special Court of Joseph, Lord
Bishop of Ely, v. Lord of the Manor of Ely Barton, before Hugh Evans,
steward of the said manor.'' It was objected that the bishop was not then
confirmed in the see, but no evidence was offisred in support of the objection,
and it was overruled. Verdict for the lessors of the plaintiflT, and the jury
Q 0%
November 24(/i.
Where au ad-
mission to a copy-
hold is made in
pursuance of a
surrender, or what
by statute is equi-
valcnt thereto,
and not as or in
consequence of a
voluntary grant
by the lord, the
lord's title is iui-
material.
Where there has
been a continued
possession of
lands for 20 years,
but not adverse,
s. 15 of 3 & 4
IV. 4, c. CT, en-
ables a party
claiming, to bring
an action within
five years after
the passing of
that statute.
452
TERM REPORTS in tub KING'S BENCH.
D0Bl2.BuR0£SS
and aDother
V.
Thompson.
King'i Bench, ^ound specially that James Thompson had held the lands for upwards of twenty
years, but had not held adversely to William Thompson,
Gunningt on a previous day, moved to set aside the verdict, and enter a
nonsuit, or for a new trial, supported by an affidavit stating that Dr. Sparkes,
the former Bishop of£/y, having died Aptil, 1836, Dr. Joseph Alien vra^s
translated to that see, but was not confirmed in it, nor were the temporalities
granted to him till the 1 9th of August in that year. — The temporalities of a
bishopric during vacancy belong to the crown (a). In Jvfy, 1836, the bishop
had therefore no authority to hold a Court. As to the copyholds, therefore,
the lessors of the plaintiff' failed to shew a title (6). And by 3 & 4 Will. 4,
c. 27, ss. 2, 7, they are barred from claiming any part of this property,
twenty years having elapsed since there was any right to make entry upon
the lands, and the tenancy, if such was the nature of the occupation, never <
having been determined. And these sections are not controlled by s. 15,
which provides, that where the possession is not adverse, an action may be
brought within five years after the passing of the act. That section does
not apply to the case of a tenancy at will. At all events^ the defendant under
the circumstances could not be treated as a trespasser. No notice had been
given^ or demand of possession made^ and the devise was no determination of
the tenancy (c).
Cvr. adv. vult.
Lord Dekman, C. J. now delivered the judgment of the Court (d). — A
nonsuit or new trial was moved for in this case on several grounds, none of
which we think tenable. With respect to the admission of improper evi-
dence, it appeared on affidavit that the lessors of the plaintiff, who claimed
as devisees under the will of one William Thompson, had been admitted at a
Court held by the steward of the manor, as steward and in the name of the
present bishop, before any grant to him of the temporalities of the see of
Eljf, the copyhold land in question being holden of a manor which was parcel
of the see. We are of opinion, that as the admission of the plaintiffs was
made in pursuance of a surrender, or what by statute is equivalent thereto,
and not as, or in consequence of, a voluntary grant by the lord, that the lord's
title was immaterial. It was contended also, that under 3 & 4 IFilL 4, c. 27,
the continued possession for twenty years by James Thompson, during the life-
time of William Thompson, barred the lessors of the plaintiff, who were the
devisees of William Thompson. But the jury have found that the possession
of James Thotnpson was not adverse to William Thompson the testator, and as
the present action is brought within five years afler the passing of the statute
3 & 4 Will, 4^ c. 27, the proviso in the 15th section of that statute saves the
right of the lessors of the plaintiff.
Rule refused.
(a) Burn's Eccl. Law, tit. Bishop, vi.
h) Coke*s Copyholder, 154.
c) Co. Lilt. 65 b, Com. Dig. Estate, (H 6.)
f
(d) Lord D0nman,C.J., VatUion, Wil-
liams, and Coleridge, Js.
MICHAELMAS TERM, 1836. 453
King*t Bench,
Ballantyne V. Taylor.
November 24tk,
VrUMFREY had obtained a rule nisi for the defendant's costs in this Tiie defendant
action, pursuant to 43 Geo, 3, c. 46, s. 3, on affidavits stating the de- JS*S!TJ^**'
fendant*s arrest for 20/. ^s. Id,, and that no bill of particulars had been de- c<x>ds sold and
livered before the arrest for a greater amount than 9/. 9j. 9e/., of which i^^^, * **'
5/. 15*. 3d, had been paid on account : that the defendant did not, at the com- R'piit0tioH,^at
mencement of the suit, owe nor has since Jwed the plaintiff 20/. : that the uecessarics. Ver*
plaintiff obtained a verdict at the trial before Lord Dcnman, C, J. at the diet for lo/. tiie
.. * T » fK y /...A/11 I I P"*^® °' "*• good*
sittmgs m London after last term, for 10/. After the action was brought, a proved to have
bill of particulars amounting to 25/. 17*. 4(/. was delivered, in which credit 5^^*^^".^"**^^
was given for 5/. 15*. Sd, The Picas were payment and infancy. Replica- the defendant ktat-
tlon to the latter, that the articles were necessaries. I'he affidavits in answer ^^^^^^^
stated that the defendant had received all the goods, but that the delivery of affidavit of the
some of them having been by the plaintiff himself, could not be proved at the ^JJ^, ,J ^^^
trial ; that the defendant failed to establish his defence ; that the judge cer- amount of up-
tified that the cause was a proper one to be tried before him. They also set been delivered,
out a letter from the defendant to the plaintiff ending thus :— " 1 intended wmI that the judge
' ^ . , certified that the
to have made some arrangements ; but if you think you can recover the bills cause was a prt>-
by law, you had better try it. I never meant to have robbed you of one ^f^^*.^?* betried
farthing/' And stated that the plaintiff in consequence of that letter, believ- hm, that the de-
ing that the defendant intended to act dishonestly, directed the arrest for uueldto hu wwts
20/. %s. Id, the amount due. under 43 o, s.
c,46.
Sir F. Pollock and Swann now shewed cause. — The question is, whether
there is reasonable ground to believe that 20/. was the worth of the articles
delivered. The defendant is not entitled to costs unless he makes it appear
that there was a want of reasonable or probable cause for the arrest ; and the
onus of shewing this rests on the defendant ; Hall v. Forgit{a), Twiss v.
Osborne (6). The meaning of the defendant's affidavit may be, that he did
not owe more than 19/. 11 ;. lid,, and that, not because he ever had the
goods, but because the plaintiff could not prove the delivery before the jury.
He does not venture to state that any one article has not been delivered or
been unfairly charged. On a motion for costs under this statu te, the Court
is not guided by the amount of the verdict ; Graham v. Beaumont (c).
Kelli/, contrd, was stopped.
Lord Denman, C. J. — It has been always held, that the amount of
damages is a primd facie ground from which to presume the presence or
absence of reasonable and probable cause for the arrest. The sum here
claimed was only just enough to entitle the plaintiff to arrest. He seems to
have wound himself up to make an affidavit covering the exact money.
Though there is conduct on the part of the defendant of which I cannot ap-
prove, yet I see nothing here to induce us to depart from the principle which
governs these cases.
(a) 1
(6) 1
Dowl. P. C. 696. (c) 6 Dowl. P. C. 49.
Har. & Wol. 274, n ; 4 Dowl. P. C. 107.
454 TERM REPORTS m the KING'S BENCH.
Kings Bench. Patteson, J.— People should understand what a risk they run in arresting
^-^v^ a party when the debt just amounts to 20/.
Ballantyne
Tayloiu Williams, J. concurred.
Rule absolute.
Ohrly and another v. Dunbar.
November 2Gth.
Sixty actions HPHE plaintiffs in this case brought sixty actions against the underwriters
broight ^u a (somc of whoHi wcrc large companies, some individuals,) of six policies
policy of iiwur. of iusuraucc on the ship Pylades, to the amount of 27,000/. A consolidation
tioD rule was eo- ^"^^ ^^^^ l^^en obtained on the behalf of the defendants, and the verdicts in
tcrcd into, by ^j^g Other actions were to be determined by the verdict in the present, pro-
vrhich tlie plaintiff . . / t
and defeudaou vided it wcrc to the satisfaction of the judge before whom the cause was
bSTnd b* "tiie vcr- ^^^^^' Subsequently the cause was tried before Lord Denman^ C. J., and a
diet in one of verdict was fouud for the plaintiff; but the defendant having obtained a rule
dicUu tHitMtion "'^ ^^^ ^ "^^ ^"^^» which was yet pending, the plaintiff— on affidavits, stating
wa» found for Ike that from the great arrear of business the rule for a new trial could not be
nitrnMi'wMob. decided for a long period of time : that two underwriters were already dead :
laiued by the de- that there was danger of others dying or becoming insolvent, and that the
trial. plaintifls, at all events, lost the advantage of the interest on the sum insured
The plaintiff — obtained a rule calling upon the defendants to shew cause why the amount
then, ou the . ... . . .
ground that by for which the plaintifl' was insured should not be paid into Court or invested
reason of (hear, according to the direction of the Court. The rule nisi for a new trial had
rear of business ° ,
in the Court, the bccn obtained, on the ground that the verdict was against evidence.
rule for a new
trial could not
come ou for a long Sir /. Coffipbell, A. G., and Maule, now shewed cause. — The defendants,
d^rh^sit^ufmc ^^^^ ^^^ ^^^ circumstanccs of the case were brought before the notice of the
the piHinUff lost Court, obtained the rule for a new trial unconditionally. The plaintiff now,
the interest,^and without thosc circumstanccs being varied, seeks to impose conditions. The
incurreti great casc of Rickmati v. CoKstoirs (fl) IS different from the present ; here the de-
])rtucipai, obtained fcndants wholly deny their responsibility ; they insist that there has been a
defelfdr" ^**' ^'"^ gross misrepresentation. On the second trial, the jury may, if they see fit,
the whole amount givc the plaintiff interest for the time elapsed between the trials. There-
oTinvm it M the ^^^^' ^^ ^^"^ application were acceded to, it would be withdrawing from the
Court should jury* to whom it properly belongs^ the discretion of giving or withholding
The Court dis- ^"^^^^st. All that the defendants get by the consolidation rule is a stay of
charged the rule, proceedings; they are bound by the verdict in one action, if the judge
approves of it. Not so the plaintiffs ; they may proceed in all the other
^ actions if dissatisfied with the verdict in the first. The plaintiffs have sug-
gested that the defendants may die or become insolvent, but that is an
argument that might be used in every case ; at all events, there is no danger
on that ground with respect to the sum insured at the great offices.
Sir JV, JV, FoUctt, and Alexander, contrd. — This is a case under peculiar
circumstanccs ; here the plaintiffs are bound by the consolidation rule, which
(a) 2 Nev. & Man. 662.
^
MICHAELMAS TERM, 1836.
455
Williams, J. and Coleridge, J. concurred.
OlIRLV
and another
V.
DUMBAB.
was applied for by the defendants themselves. The words of it are, on sub- Kiugt Bench,
mission of the plaintiffs and defendants to be bound by the verdict. — [Pat-
teson, J. — Then this is different from the ordinary consolidation rule.]— It is
so. If the rule for a new trial is discharged, the plaintiffs will be losers of
interest to the amount of 1500/. This is not a case in which, under the
recent statute, interest can be given by the jury. It is true there is no
danger, from death or insolvency, as to the sums insured in the great offices,
and the plaintiff is willing that the rule as to that part should be discharged.
Lord Denman^ C. J. — The remarkable circumstances of this case induced
tlie Court to allow the question to be discussed. But we are all most deci-
dedly of opinion that we should add materially to the delay in transacting
the business of this Court if we made this rule absolute. Were we to do so,
every party having a rule for a new trial in the paper, would^ under the
peculiar circumstances of his case, come and make similar application. We
also think that no reference should be made to what may be the existing
state of business in the Court.
Patteson, J. — I am entirely of the same opinion. I do not see that any
thing arising out of the consolidation rule bears on the question ; the delay
is not occasioned by that ; because, if all the sixty causes had been tried,
there would be sixty rules for new trials.
Rule discharged.
The King v. The Mayor and Assessors of Hythe.
ITPON the revision of the burgess lists of Ht/the by the mayor and two
assessors, October, 1836, pursuant to 5 & 6 IVill. 4, c. 76, s. 18, it was
objected, that W, A, and certain others, not having paid the shilling required
by 2 Wm, 4, c. 45, s. 56, were therefore disqualified. The mayor and one
of the assessors, being of that opinion, struck out their names. Upon affi-
davits stating these facts, and also that the parties possessed the qualification
required by 5 & 6 Will 4, c. 76, s. 9,
Sir W. W, FolUtt now moved for a mandamus to the mayor and assessors
to insert the names on the burgess roll. — The payment of the shilling is no
part of the qualification required by 5 & 6 Will. 4, c. 76. These parties
have therefore a good inchoate right, and have no other remedy. The
Court will therefore grant this writ pursuant to the practice followed before
the passing of 5 & 6 Will, 4.
The Court (a), afler referring to the circumstance that the mayor and
November 26th,
Certain bur-
gesses who pos-
sessed the qoalifi-
CHtioD required by
a & 6 JT. 4, c. 76,
s. 9, were ob-
jected to at the
revision of the
Ibts before the
mayor and as-
sessors, because
they had not paid
the shilling re-
quired by 8 fV, 4,
c. 45, s. 56, and
their names were
thereupon ex-
punged : — HtU,
that a mandrntnus
does not lie for
Uie insertion of
the names.
(a) Lord D§iman,C. J.| Patteson, Williamt, and Coleridge, Js.
Abe
TERM REPORTS m the KING'S BENCH.
Ki»g*s Bench, assessors who acted were now out of office (a), and to the provisions of sec-
tions 18^ 19, and 22 (6), refused the rule.
Rule refused.
The Kino
V.
The Mayor and
Assessors of
Hythe.
(a) By sect. 49, the election of mayor takes
place on the 9th November , annually.
(b) Sect. 18 provides, that a Court for
revising the lists shall be held between Oc-
tober 1st and October 15th, and that the mayor
shall insert no name unless notice has been
previously given.
Sect. 19. That at such Court the mayor
shall write his initials against the names in-
serted.
Sect. 22. That the mayor shall deliver the
lists to the town clerk, who, before October
22d, shall copy them into a book, which
book, for the year ensuing, from November
Ist inclusive, shall be the burgess-roll.
Peacock v. Harris.
November 25th, rpHE plaintiff* in this case having obtained a verdict, a new trial was after-
hat" "'^"bud d wards granted, on the ground of the improper reception of evidence,
verdict, a new Nothing was Said about costs. Notice of trial having been given by the
wudaTn^the Plaintiff*, the defendant, before the time of trial, withdrew all his pleas, and
rule being siieDt judgment went by default. The Master, upon his taxation, allowed the
tkrortrili waT plaintiff* the costs of the first trial. A rule having been obtained for the
given by the plain- Master to review his taxation,
tiff. Before the
time of trial came
wUMmr hte**"* t/crvw now shewed cause. — In Booth v. Atherton (c), where, after argument
pleas, and judg- ou a Special casc, the Court directed a new trial, because the case was insuffi-
SefHuit*— fliw ciently stated, and in Jackson v. Hallam (d), where after verdict for the plaintiffT
that Uie piainUff a ucw trial was granted, and the defendants gave cognovits without going to trial,
to the cMu of the ^^^7 ^^^^ l^^ld liable to the costs of the first trials. In this case the defendant's
^^^' conduct amounts to the same thing as giving a cognovit. It is an admission
that he never had any ground of defence to the action. The rule of H» T. 2
Will. 4, r. G4, does not apply to cases like the present. The object of it was to
assimilate the practice of the Courts where a new trial actually takes place. —
[Coleridge^ J. — Gray v. Cox (e) is later than Jackson v. Hallam {d). There, after
verdict for the plaintiff", and a new trial granted, the plaintiff* discontinued.
It was held that the defendant was not entitled to the costs of the trial.] —
There the verdict on the first trial was against him. In Sweeting v. Halse (j"),
' where it was for the defendant, he was, after new trial granted and a discon-
tinuance by the plaintiff*, allowed the costs.
R. V, Richardsj contrH, — The cases where there has been a discontinuance
are not applicable. The party who discontinues must accept that indulgence
on the terms imposed by the Court. Before the new rules, the granting of
these costs was mere matter of practice varying in the diff*erent Courts. But
the rule H, T. 2 Will. 4, r. 64, is quite express, that if no mention is made
of costs in the rule, the costs of the first trial shall not be allowed to the
party succeeding, even though he succeed on the second ; and the construc-
tion of this rule is quite established ; Newberry v. Cohin (g), Porter v.
Cooper (h)*
(c) 6T. 11. 144.
(d) 2 13. & A. 317.
(e) 6 B. & C. 458.
(f) 9B. &C.369.1
(g) 2 Dowl. P. C. 416.
(/t) 1 Gale, 149 ; 2 C. M. & R. 232.
MICHAELMAS TERM, 1836. 467
Per Curiam {a). — This case falls within the rule, and therefore we have no King** Bench,
power to grant costs. v^v^/
Rule absolute (A). Peacock
(a) Lord Denman, C. J., Patteion, Wil- (b) See Seally v. Powu, I Har. & Wol. Harris.
liams, and Coleridge, 3s, 118.
IN ERROR IN THE EXCHEQUER CHAMBER,
Before Tindal, C. J., Lord Abinger, C. B., Park, J., Gaselee, J.,
Vaughan, J., BosANQUET, J., BoLLAND, B., Alderson, B., and
GURNEY, B.
Campbell, Clerk, and others, v. Maund. Eich. cham.
November \$t.
npRESPASS in the King*s Bench against the plaintiffs in error, for as- i. The right to
saulting the defendant in error, and turning him out of the vestry-room ^*'°a"1 * d*" **i
of the parish of Paddington, he being one of the churchwardens. The plain- to Uie eiecuon of
tifts in error were the perpetual curate of the parish, one of the church- ghowoHiands ^^
wardens {Hill), and the beadle. They pleaded a justification, on account of where there is uo
3/at/;i(f being neither churchwarden nor a vestryman. Replication, deinjurid, exciudc^^u.***" '**
on which issue was joined. The cause was tried before Lord Denman, C. J. «• a demand of
at the sittings in London after Michaelmas term, 1835, and the assault was until after the* *
proved. It was proved on the part of Maund, that there was a local act, 5 »how of handa is
Geo, 4, c. cxxvi, regulating the parish of Paddington, by the 10th section of favour of on«*can-
which it was enacted, that the election of churchwardens should take place <*i^ate, it good,
on Easter Tuesday, and should ** be conducted from year to year in such ofapoUtobe
manner as hath been usual in the same parish.'' It was also proved, that ^^iJ.^ * ^^^'
long before and since the passing of the statute 58 Geo, 3, c. 69, {St urges made, and no ob.
Bournes Act,) the mode of electing of churchwardens in the parish of Pad- ihruAing"? the***
dington had been by show of hands, no poll ever having been demanded ; poi^ •^ ""» on the
that on Easter Tuesday, 1835, the defendant in error, Maund, and one Hobbs, foi^°of demand i»
were proposed as churchwardens at a vestry held for the purpose of electing irregular, •hh a
churchwardens, and that Hill, one of the plaintiffs in error, and Goodhind, a waWer^of any "
were also proposed ; that a shew of hands was taken, which was declared to j^B»'«rity >» the
* * form of the de-
be in favour of Maund and Hobbs, whereupon a poll was demanded to be mand.
taken, according to the statute 58 Geo. 3, c. 69. This mode of taking the 0^%'°^^^^ g^'***
poll was objected to by an inhabitant present, who insisted that only a single fore and after the
vote should be allowed to every voter, and not the plurality of votes given of5I°c to'^the^
by 58 Geo, 3, c. 69, according to each voter's property. Previous to the modeofeiecung
election, the following notice, signed by Mr. Campbell and the churchwardens, haS'been^'Slow
had been circulated in the parish : — of hands, no poii
ever having been
" Paddington, Middlesex, 1 6th April, 1 835. ^^nS^lpI.e';;' ''
** If a poll should be demanded for the election of churchwardens on TueS" specuuustom "'
day next, it will be open at the National School Room, Harrow Road, imme- ««ciade a poii ;—
d lately after the meeting of the inhabitants and occupiers, and will continue parish was not
exempted bj the
8th section from the operation of that act giving a ploralitjr of votes according to property*
5. A sobseqaent local act having enacted that the election of churchwardens sboald be conducted in
such manner as hatli bern usual in the same parish;— il«/tf, that a peril stIU aost b« taken bj a plurality of
votes, according to the 56 0. 3, c. ^ the mere fiict of the votes atvfr htvlog been lo takett being imma-
terial.
468 TERM REPORTS in thb EXCHEQUER CHAMBER.
Eich, Cham, open, for the convenience of the rate-payers, until six o*clock on Thursday
v^N/^^ evening, and likewise from eight to six on the following day ; and in this
^d**^h*^^ cage the ballot for vestrymen will commence on Thursday morning next at
v. nine o'clock, will continue until six in the evening, and likewise from eight
Maund. to six on Friday, the following day. If no poll should be demanded for the
election of churchwardens, the ballot for vestrymen will commence imme-
diately after the meeting of the inhabitants and occupiers on Thursday^ will
continue until six o'clock that evening, and likewise from eight to six on
Wednesday^ the following day."
On the poll being demanded, the chairman adjourned immediately to the
said school room. The poll was then taken, and all rate-payers who had
paid their rates were allowed to vote, whether they had been present or not
at the vestry meeting when the shew of hands was taken. The poll was
kept open two days, and at the close of it HiU and Goodhind were declared
to be duly elected, not only by a majority of votes with reference to pro-
perty, but also by a majority of single votes. While the poll was open,
several rate-payers and inhabitants protested against the mode in which the
poll was taken, and accordingly refused to give their votes. All the four
candidates were afterwards sworn in by the surrogates. At a vestry meeting
held afterwards, Maund attended as churchwarden, when he was turned out
of the vestry room by the plaintiffs in error, and it was for this assault that
the action was brought. It was objected on the part of the plaintiffs in
error, that on this evidence Maund should be nonsuited, as he had not been
properly elected churchwarden. Lord Denman, however, directed the jury,
that upon the evidence (if believed) Maund was duly elected churchwarden ;
that the 10th section of the local act, 5 Geo, 4, c. cxxvi, took the parish of
Paddington out of the operation of the statute 58 Geo, 3, c. 69, as to the
election of churchwardens by a plurality of votes in a single person by
reason of rateable property in the parish ; and that a poll being demanded
according to the provisions of that statute, under the circumstances proved,
the chairman was not justified in holding it at all ; and therefore the election
must be determined by the shew of hands, the majority of single votes upon
the shew of hands being allowed to be in favour of Maund, He then left tlie
case to the jury, who found a verdict for Maund, A bill of exceptions,
stating the above evidence and direction, having been tendered, excepting to
this direction to the jury, a writ of error was now brought accordingly.
Sir F, Pollockt for the plaintiffs in error. — Two points are made in this
case ; first, it is contended that the election of Maund by the shew of hands
was not valid, there having been a demand of a poll, which demand, in the
particular form in which it was made, did not render it a void demand, and
that the poll itself was properly taken ; and secondly, it is contended that
the provisions of the 58 Geo, 3, c. 69, apply to the parish of Paddington, and
that the poll must there be taken according to diat statute, and that this
is still to be done even since the passing of the local act 5 Geo. 4, c. cxxvi#
s. 10, and that therefore Hill and Goodhind were properly elected church-
wardens. On the first point, the case of Anthony v. Seger (a) shews that a
demand of a poll is necessarily incident to a shew of hands, that being
s
(a) 1 Hagg. Consist. Rep. 9.
MICHAELMAS TERM, 1836. 459
merely an expeditious but imperfect method pf ascertaining the opinion of Eich. Cham.
the electors. There having been in this case a demand of a poll, the decision
by show of hands became nugatory. The demand, notwithstanding the par- Campbell
ticular form in which it was made, namely, that it should be taken according ^^
to the statute 58 Geo. 3, c. 69, is moreover a good demand of a poll, even Maund.
supposing that that act does not apply to the parish, as it was not necessary
that the poll should afterwards be so taken, and as it moreover appears that
in fact it was taken both ways, and with a similar result. The case of Tke
King V. The Archdeacon of Chester (a) is an authority to shew, that the poll,
when taken, need not be confined to those persons only who had been pre-
sent at the vestry. On the second point, it will be contended on the other
side, that the parish of Paddington is within the 8th section of the 58 Geo. d,
c. C9, which enacts that that act is not to take away the powers of any vestry
of a parish under any special usage or custom. It is however submitted,
that there was no special usage or custom in this parish to bring it within
that section. It will also be contended, that by the 10th section of the sub-
sequent local act, 5 Geo, 4, c. cxxvi, enacting that the election of church-
wardens in Paddington shall ** be conducted from year to year in such
manner as hath been usual in the same parish," this parish is excepted from
the effects of the general act. Here the usage referred to could only be
intended such usage as by law ought to be followed in conducting the elec-
tion of churchwardens. That legal usage was, to take a poll according to the
plurality of votes, under the 58 Geo. 3, c. 69, and it is immaterial that no
actual poll had ever been so demanded and taken subsequent to the passing
of that act.
The Attornet/'Generalf contrti. — The whole of this case depends on the
point of whether the election of churchwardens is to be by single votes, or
by a plurality of votes, under the 58 Geo. 3, c. 69. In the first place, there
being no doubt but that Maund and Hobhs had a majority of votes on the
show of hands at the vestry, there was no ground for taking a poll at all.
It cannot be said that on every occasion a poll may be demanded at a vestry
meeting, thereby giving an opportunity to persons not present to vote. All
that was decided in The King v. Archdeacon of Chester was, that the chair-
man could alone, without tlie consent of the meeting, adjourn it under the
particular circumstances of that case. In that case also it is to be supposed
that there was a right to demand a poll, which is not the case here. The
judgment of Lord Stotvell, in the case of Anthony v. Seger, only applies to
cases where there is any doubt as to what is the decision of the vestry on the
show of hands. Prideaux^s Office of Churchwardens (6), also may be cited,
as shewing that the persons who attend a vestry are as it were a deputation
from the whole parish, and that they alone have power to act in vestry
matters. Next, assuming that at common law there was a right to demand a
poll, still it appears that in Paddington there was a custom to decide the
election of churchwardens by show of hands, and the notice previously cir-
culated in the parish cannot have the effect of altering that custom, and of
making the taking of the poll valid. — [Lord Abtnger, C. B. — Such a custom
would not be a valid custom, as it appears to me.] — The case of The King v.
St, Jafnes% Westminster (c) shews, that even if invalid, atiU under the 10th
(a) I AdoL & £L 942; 3 N«T. & Man. 413. (b) Fail4l» Ml l4t («) 4^, 355.
460 TERM REPORTS in the EXCHEQUER CHAMBER.
Exch, Cham, section of this local act it would now be right to observe such a mode of
''•^^'^ election. Another ground on which this poll was invalid was, that it was
^^d*^°h ^^ demanded that the votes should be taken under the 58 Geo, 3, c. 69 ; if,
^. therefore, as the defendant in error contends, the single votes only could be
Maund. taken, the poll was invalid in consequence of this informal demand. The
next point is, that this parish is within the 8th section of the 58 Geo. 3,
c. 69, there being clearly an ancient or special usage or custom to conduct
the election of churchwardens by show of hands. Even if the parish is not
within that section, the 1 0th section of the local act equally excepts this
parish from the effects of the general act, the usual manner of conducting the
elections of churchwardens previous to the passing of the local act having
been by show of hands. The cases of Rex v. Birch (a), and The Duke of
Bedford v. Emmett{b), both shew, that by the term usual manner, is meant
the way in which elections were in fact conducted, and not the way in which
they might have been, had certain legal rights which might have been enforced
been resorted to. There is no doubt that both before and after the passing
of the 58 Geo, 3, c. 69, the usual manner of conducting these elections was
in fact by show of hands, and not by taking a poll in any way. The local
act also expressly refers to the 58 Geo, 3, c. 69, by directing that its pro-
visions should be observed in the election of vestrymen ; it was therefore
not intended that those provisions should be observed in the election of the
churchwardens.
Sir F, Pollock, in reply. — The principal question in this case is, whether
the provisions of the 58 Geo, 3, c. 69, apply to the parish of Paddington, for
it is impossible to say that a poll can at common law be refused. The case
of The King v. The Archdeacon of Chester is directly in favour of the plain-
tiffs in error. The point turns on what was the mode of ascertaining the
majority, in elections of churchwardens in the parish of Paddington, All that
appears is, that no poll was ever demanded ; but it does not thence follow
that there was no right to demand one, or that there was a custom to exclude
such a right ; and in the absence of proof of such a custom, it must be taken
that a poll might have been at any time demanded. The 10th section of the
local act intended merely that the election should still continue in the pa-
rishioners at large, and that they should still have the right to elect both the
churchwardens, as, by the common law, the minister would appoint one.
Cur. adv, vult,
TiNDAL, C. J. afterwards {November 26th) gave judgment. — The present
case is brought before us by writ of error from the King's Bench, founded on
a bill of exceptions, which was tendered by the plaintifls in error (the defend-
ants below), to the direction of the Lord Chief Justice of that Court on the
trial of the cause. The action was an action of assault, to which the de-
fendants pleaded a justification, stating in substance that a general meeting
of a vestry of the parish of Paddington was duly assembled in a convenient
place, and that the plaintiff, without right or authority so to do, and not
being one of the churchwardens nor a vestryman of the parish, unlawfully
intruded himself into the vestry-room, and refused, upon request made, to
(c) 4 Terra H«p. 608. (d) 3 Barn. & Aid. 366.
N
MICHAELMAS TERM, 1836. 461
go out of the same, whereupon he was gently removed by the direction of Eich. Cham,
the defendants. The replication takes issue on the facts of this justification.
and the inquiry at the trial was reduced to this single question, whether Campbell
Alaund, the plaintiff below, had been duly elected churchwarden or not. ^^
The learned Lord Chief Justice told the jury, ** that upon the evidence (if Maund.
believed) the Tp\a\ntiff Maund was duly elected churchwarden ; that the 10th
section of the Local Act, 5 Geo. 4, c. cxxvi, took the parish of Paddington
out of the operation of the statute 58 Geo. 3, c. 69, as to the election of
churchwardens'by a plurality of votes in a single person by reason of rateable
property in the parish, and that a poll being demanded according to the pro-
visions of that statute, under the circumstances proved, the chairman was not
justified in holding it at all, and therefore the election must be determined
by the show of hands, the majority of single votes upon the show of hands
being allowed to be in favour of the plaintiff." To this direction the de-
fendants below excepted in point of law.
The bill of exceptions raises two points, each of which has been argued
before us, viz. : — First, whether the election which took place, at a poll
demanded and granted, under the circumstances stated in the bill of excep-
tions, was a legal and valid election ; and secondly, whether the provisions
of the statute 58 Geo. 3, c. 69, apply to and govern the parish of Pad-
dington,
And upon the first question we are all of opinion that the election which
took place at the poll, demanded and granted in the manner and under the
circumstances stated, was a legal and valid election.
We agree to the proposition contended for on the part of the defendant in
error, that whatever was the particular mode of electing the churchwardens
for the parish of Paddington, at the time of passing the Local Act, the same
mode is still preserved, and remains unaltered in the parish, by virtue of the
10th section of that act. For the provision in that section, " that elections of
churchwardens shall take place on Easter Tuesday, and be conducted from
year to year in such manner as hath been usual in the same parish," appears
to us to intend the usual and customary mode of election de facto observed
there, whatever it might be, and without any reference to its origin or con-
formity with the general law. But we are at the same time of opinion, that
the mode of electing churchwardens in the parish of Paddington, set out in
the bill of exceptions, is not inconsistent with, nor does it by any means ex-
clude the right of the parishioners of Paddington to have recourse to a poll
in the election of churchwardens for that parish.
All that is stated to have been proved to the jury is, '' that the mode of
electing of churchwardens in the parish of Paddington had been by a show
of hands, no poll ever having been demanded.*' There was no evidence
before them of any poll having been ever demanded and refused, or of any
custom or usage, in negative words, to exclude the granting of a poll when
properly demanded.
The question therefore becomes this, whether the right to demand a poll
is by law incidental to the election of a parish officer by show of hands,
where there is no special custom to exclude it. And we think such right
is in point of law a necessary incident or consequence to the mode of
election by show of hands, wherever it is not by special custom excluded.
Independently of any authority upon the subject, the recourse to a poll, when
462 TERM REPORTS in the EXCHEQUER CHAMBER.
Exeh, Cham, ^^^ population of the parish is large, appears to be the only mode of aacer-
v^v^ taining with precision the numbers of those who vote on each side, and the
Campbell rjght of each elector to vote. Again, it is, under the same circumstances,
V, *" ^^® ®^^y wiode by which each individual elector can have the power of ex-
Maund. pressing his opinion at all, for in the case of populous parishes no vestry
room can be large enough to contain the whole body. Still farther, where
the election is carried on with any warmth of popular feeling, it is the only
mode by which a large portion of the community can express their opinion
with freedom and security. But in addition to these general grounds, we
think the authority of Lord /$'^ott;e/r« judgment, in the case referred to in the
course of the argument, is entitled to the greatest consideration in a matter
of this nature (a), that *< where a poll is demanded, the election commences
with it as being the regular mode o£ popular elections, the show of hands
being only a rude and imperfect declaration of the sentiments of the elec-
tors." << It of^en happens,'' adds that learned judge, ** that on a show of
hands the person has the majority who on a poll is lost in a minority, and if
the parties could afterwards recur to a show of hands, there would be no cer-
tainty or regularity in elections. I am of opinion therefore,'* he adds, ** that
when a poll is demanded, it is an abandonment of what was done before, and
that every thing anterior is not of the substance of the election nor to be so
received."
The right to demand a poll, being therefore, as it appears to us, by the
common law, an incident to the popular election of a person to an office, we
think the electors cannot be deprived of it without a special custom of elec-
tion inconsistent with such right, or expressly excluding it by negative terms,
viz. that no such right exists in the particular parish. And we are clear that
there is no such finding as to the parish of Faddingtonf or facts stated which
could warrant such a finding, but that the case strongly resembles that of
Doe V. Llewellin (a), where it was held by the Court of Exchequer, that the
finding in a special verdict, " that there did not appear on the Court rolls any
entry of a surrender to the use of a will," was no finding of a custom that
lands within the manor could not be surrendered to the use of a will.
But it is objected, that the demand of the poll was in the present case a
nullity on two grounds ; first, because it was not made until afler the show
of hands was declared by the chairman to be in favour of the plaintiff and of
the candidate joined with him ; and secondly, because the demand required
that the poll should be taken pursuant to the statute 58 Geo. 3, c. 69.
We think it an answer to the first objection, that in the nature of the thing
the demand of a poll never is, nor can reasonably be expected to be, made
until the necessity for such demand arises, that is, until one of the contending
parties is dissatisfied with the decision of the chairman upon the show of
hands, from which it is in the nature of an appeal.
And as to the second objection, it might be sufficient to observe there is
no evidence in this bill of exceptions that any one of the parishioners in
vestry objected to the demand of the poll on that ground. If the granting of
the poll had been objected to on that ground and refused, the question might,
by possibility, have arisen, whether the annexing to the demand of a poll the
requisition of a peculiar mode of conducting it, did or did not afford a justi-
(a) Anthwy v. Seger, 1 Hagg. Cons« Hep. 13. (a) 2 Crooi. M. dt Ros. 503.
MICHAELMAS TERM, 1836.
463
Campbell
and others
V,
Maund.
liable excuse for the refusal to allow the poll. But in this case neither of Exch, Cham.
the parties objected that a poll should in fact be taken. And as in point
of fact, upon the present occasion, a poll was granted and actually taken
between the contending parties, we hold there has been a complete -waiver of
any irregularity, in point of form, in the mode of demanding a poll, even if
any such irregularity had existed, which however we think was not the case.
But it is, lastly, and indeed principally objected, that the poll was impro-
perly taken, the electors having been allowed to have a plurality of votes
according to the amount of their property, as provided by the statute 58
Geo, 3, c. 69, and not having been each restrained to the exercise of a
single vote ; whereas the parish of Paddingio/if as it is contended on the part
of the plaintiff below, is excepted out of the operation of that act by the 10th
section of the Local Act, 5 Geo, 4, so that no elector can have more than a
single vote in the election of a churchwarden. But as the evidence before
the jury was, that the defendant HiU and the candidate joined with him, who
were declared duly elected at the poll, were not only elected by a majority
of votes with reference to property, but also by the plurality of single votes,
it becomes a matter of indifference to the parties to this suit whether the
legal right of voting in the parish of Paddingtonf is governed by the statute
58 Geo. 3 or not, for upon neither supposition has the plaintiff below been
elected to the office of churchwarden.
As, however, both the parties have been heard on this question before us,
and have expressed a desire that we should deliver our opinion upon it, and
as we ourselves think the expression of our unanimous opinion may have the
effect of preventing any future litigation on the subject^ we have thought it
right to enter upon the discussion of the second question, that is, whether
the mode of election by the statute of 58 Geo. 3, does or does not extend to
the parish of Paddington.
This question depends for its answer on the proper construction to be put
upon the 8th section of the general act, and the 10th section of the local act.
The 8th section of the general act provides, *' that nothing in that act con-
tained shall extend to take away, lessen, prejudice, or affect the powers of any
vestry or meeting holden in any parish, township, or place, by virtue of any
special act or acts, or of any ancient or special usage or custom."
Now there is no special usage or custom as to the mode of electing church-
wardens in the parish of Paddingtohf fbund upon the bill of exceptions, where
they are to be elected in vestry. The churchwardens, at the time of passing
that act, were chosen by a show of hands, so were the elective church-
wardens, generally speaking, throughout most of the parishes in England, It
is the general mode of election of churchwardens throughout the realm. But
it is found that no poll had ever been demanded in the parish ; the same may
be said of very many, perhaps by far the greatest part of the parishes in
England, in which the parishioners have never demanded a poll, because they
have been satisfied by the show of hands. If the custom within the parish
of Paddington had by negative words excluded a poll, it would then indeed
have been a special usage or custom which would have taken that parish out
of the operation of the statute, for it is obvious that an election by show of
hands alone, is necessarily inconsistent with the allowance of a plurality of
votes in any one person. But if the usage or custom within Paddington^ as
set out in the bill of exceptionsi should bt lidd suflBdeiit to exclude a parish
464 TERM REPORTS in the EXCHEQUER CHAMBER.
Exch, Cham, from the operation of the 58 Geo, 3, on the ground of its being special, the
statute would have comprehended a very small proportion indeed of the
^^**'*"'''' numerous parishes in England.
If then the 58 Geo, 3, taken by itself, includes within its operation the
V,
Maund. parish of Paddington, is there any clause in the local act which can exempt
the parish from its operation ? The only clause which can be contended
to have that construction is the 10th. By that clause, as before observed, it
. is enacted, <* that the election of churchwardens shall take place on Easter
Tuesday, and be conducted from year to year in such manner as hath been
usual in the same parish."
This clause, as we have before observed^ was intended to leave the parish
of Paddington precisely in the same condition as it was at the time of the
passing that act. Now what was the condition of the parish as to its mode
of electing churchwardens at that time ? We answer, by show of hands, if
no poll is demanded, and if demanded, then by a poll taken according to law.
Now by law, at that time, a poll must be taken by a plurality of votes, as
provided by 58 Geo. 3, where the parish falls within the operation of that
statute. And the mere fact that the votes have never been actually taken in
that mode since the passing of that statute, is no more a proof that the
statute does not apply, than the fact of the non-demand of a poll proves that
such poll was not demandable of right.
Upon the whole of this second question, we think that the mode of electing
churchwardens in the parish of Paddington^ before the passing the 58 Geo, 3,
was by a show of hands, with a power of going to a poll, in which case the
majority of single votes decided the election ; that the statute 58 Geo, 8,
gave each voter a plurality of votes at the poll when demanded and held ac-
cording to the quantity of his estate, and that such being the rightful mode
of election at the time of passing the local act, it was continued and preserved
to the parish by the 10th section.
We think, therefore, that upon the present record a judgment of venire de
novo must be awarded.
Venire de novo awarded.
-^
Before Tindal, C. J., Lord Abingeb, C. B., Gaselee, J., Vaughan, J.,
BoLLAND, B., and Aloersom, B.
Hitchcock v. Coker.
November 26th,
1. An agreement HT^HIS was an actiou of ossumpsit brought by the plaintiff in error against
^^T^ne'Ltering ^^^ defendant in error, in the Court of King*s Bench, and tried at the
into the »ervice of Somersetshire Spring Assizes, 1835. The declaration stated, *' that whereas,
wUtent, "ot to before and at the time of the making of the agreement, and the promise and
carry on tiic trade undertaking of the defendant hereinafter mentioned, the plaintiff was a
the same town as chcmist and druggist, and had taken the defendant into his service as an as-
his master did, sistaut in his said trade and business, at a certain annual salary in that behalf,
nor witlun three ''
miUs of it. Tlie
operation of the agreement was not limited to the life of the master, nor to the time tliat he should carry on
his business, nor to any term of years, and therefore extended to the life of the assistant : — HM, tliat the
agreement was not on that account illegal as being in restraint of trade.
8. There must be a good and valuable consideration for such an agreement, but the Court will not ex-
whether the coosidcration b equal in value to what is given up.
MICHAELMAS TERM, 18S6.
465
Hitchcock
V,
COKIB.
to be paid by the plaintiff to the defendant, upon condition, amongst other Exeh. Cham.
things, that the defendant should enter into, and observe, and perform the
agreement hereinafter contained. Now, therefore, the defendant in considera-
tion of the premises and in performance of the said condition, heretofore, to
wit, on the tiOth day o£ Jprii, in the year of our Lord 1832, by a certain
agreement then made by and between the defendant of the one part, and the
plaintiff of the other part, after reciting that the plaintiff had taken the de-
fendant into his service as an assistant, at a certain annual salary, upon con-
dition, among other things, that the defendant should enter into, and observe
and perform the agreement thereinafter contained, the defendant did in and
by the said agreement promise and agree to and with the plaintiff, that if the
defendant should at any time thereafter directly or indirectly, either in his
own name, or in the name or names of any other person or persons, use,
exercise, carry on, or follow the trades or businesses of a chemist and drug-
gist, or either of them, within the town oi Taunton, in the county o£ Somerset^
or within three miles thereof, then, that the defendant, his executors or ad-
ministrators, should and would on demand pay or cause to be paid unto the
plaintiff, his executors, administrators, or assigns, the full sum of 500/. of
lawful money current in England, as and for liquidated damages." Breach,
that the defendant did, in his own name, carry on the trade of a chemist and
druggist in the town of Taunton. To this declaration the general issue was
pleaded, on which issue was joined, and a verdict was found for the plaintiff.
Afterwards a motion was made in the King's Bench in arrest of judgment,
on the ground principally that the agreement was illegal as being in restraint
of trade. That Court arrested the judgment, on which occasion they gave
the following judgment : —
Lord Denman, C. J. — ^This was a motion in arrest of judgment ; the ac-
tion was in assumpiii on an agreement made by the defendant not to carry on
the business of a druggist^ in the town of Taunton, Some minor objections
were taken to the declaration, which it is unnecessary to notice, as we are of
opinion that the agreement itself is illegal. The law upon this subject has
been settled by a series of decisions from Mitchell v. Reynolds (a) to Horner v.
Graves (Jb), viz. that an agreement for a partial and reasonable restraint of
trade upon an adequate consideration is binding, but that an agreement for
general restraint is illegal. What shall be considered as a reasonable re-
straint was much discussed in the case of Homer v. Graves, where the Chief
Justice of the Common Pleas observed, ** we do not see how a better test
can be applied to the question, whether reasonable or not, than by consider-
ing whether the restraint is such only as to afford a fair protection to the
interests of the party in favour of whom it is given, and not so large as to
interfere with the interests of the public. Whatever restraint is larger than
the necessary protection of the party, can be of no benefit to either, it can only
be oppressive ; and if oppressive, it is, in the eye of the law, unreasonable.
Whatever is injurious to the interest of the public is void, on the grounds of
public policy." It may indeed be said, that all such agreements in some
degree interfere with the public interest, and great difficulty may attend the
application of that test, from the variety of opinions that may exist on the
quantum of interference with the public interest which the law ought to pre-
(•) I P. Wmt. 181 ; 10 Mod. 27, 85, 130 ; Fort. 296.
VOL. II. H H
(b) 7 BiDg. 735.
466 TERM REPORTS in the EXCHEQUER CHAMBER.
Exeh, Cham, vent ; but on the other hand, it appears quite safe to hold that the law will
v^'/^^ not inforce any agreement for curtailing the rights both of the public and the
Hjtchcock contracting party, without its being necessary for the protection of him in
CoKER. whose favour it is made. In that case, the question arose upon the distance
to which the restraint extended, here it arises upon the time. The agree-
ment as to time is indefinite, it is not limited to such time as the plaintiff
should carry on business in Taunton, nor to any given number of years, nor
even to the life of the plaintiff; but it attaches to the defendant so long as he
lives, although the plaintiff may have left Taunton, or parted with his busi-
ness, or be dead. None of the cases in the books turn upon this question,
it is indeed alluded to in Chesman v. Nainby (a), and the counsel for the plain-
tiff, arguendo, seems to admit that the bond on which that action was brought
could not be put in force for a breach a(\er the death of the obligee, but the
breach was assigned on another part of the condition and held good. In the
present case, the agreement not being under seal and not being divisible, if
bad in part is bad altogether. In the absence of any authority establishing
the validity of an agreement, though indefinite in point of time, and trying the
reasonableness of it by the test above alluded to, we think that the restraint
here is larger than the necessary protection of the party (in favour of whom
it is given) requires, and that it is therefore oppressive and unreasonable.
The consideration for this agreement appears to have been trifling ; but even
if it had been much more valuable, the same result would have followed.
The judgment must be arrested.
A writ of error was then brought in this Court, and the error assigned was
the arresting the judgment.
Sir ir. W, Follett (with whom was Crowder) for the plaintiff in error. —
The judgment given by the Court of King's Bench for arresting this judg-
ment, was erroneous. The question in the present case is, whether this
restraint, which prevents the defendant from exercising at any time during his
life the trade of a chemist in the town of Taunton, is an illegal restraint in
point of its duration, as being in restraint of trade, and whether there is a
sufficient consideration for it. As it was a voluntary act on the part of the
plaintiff to take the defendant into his service, he was entitled to make con-
ditions, so that his own business should not be injured by the information the
defendant would derive. There appears then to liave been ample considera-
tion, and therefore the only point is, whether the agreement not to carry on
the business is longer in regard to time than the law will allow. It is sub-
mitted that it is not. The Court of i^mg*« Batch in their judgment say, that
this restraint is larger than is necessary for the protection of the party, not
being confined to the time that the plaintiff carries on business, nor to the life
of the plaintiff; but it is not in fact larger than many restraints extending over
a large extent of country, which have been held valid. In the. case of the
Dj/er (b), 2 H. 5. f. 5. b. pi. 26, it appears that there was no consideration
whatever for the restraint, and it was therefore held illegal. In Horner v.
Graves (c), a restraint was held void which extended to the distance of one
hundred miles round York ; but that distance would have comprehended a
very large proportion of the whole of England, and it was in that particular
(o) 2 Sir. 739 ; 2 F^rd Raymond, 1456 ; (h) Called the Weaver*i Case, 1 P.Wros. 195.
1 Brown, P. C 234 ; Fort, 297. (c) 7 lUng. 736.
%
MICHAELMAS TERM, 1836.
407
c&se held to be unreasonable, being more than sufficient for the necessary
protection of the interests of the party. In Bunn v. Guy {a\ a restraint not
to practise as an attorney within 150 miles of London, was held good. In
that case the restriction was as large in point of time as the present. There
are also other reported cases which shew that there is nothing illegal or
against public policy, because a restriction will prevent a person carrying on
a trade in several different towns. There are three cases in which the plain-
tiff may require the full protection of a restraint of this kind : on entering
into a partnership, on taking an apprentice, and on the sale of the good-will
of his business. The plaintiff has a clear right to sell the good-will of his
business, and having made this condition with the defendant, he can obtain
the sum which it is really worth in his own hands ; and yet, according to the
judgment of the Court of King*s Bench, that condition is bad, because it is
not confined to the time that the plaintiff carries on the business. The Court
of King's Bench also says, the restraint should be confined to the life of the
plaintiff; but has he not a right to leave his business to his children in the
same way in which he carried it on himself? Why should he not be allowed
to prevent his assistant setting up as a rival to his children as well as to him-
self? The good-will of a business is assets in an executor's hands (6). In
the same way, suppose the plaintiff took in a partner, and afterwards died or
dissolved partnership, is this restraint bad because it will still prevent the
defendant setting up business in opposition to the partner? In point of
authority also, as well as in point of principle, there is no case to shew that
this restriction ought to have been more confined in point of time. The
leading case is that of Mitchel v. Reynolds (c) . In that case the Court said,
'* We are all of opinion, that a special consideration being set forth in the
condition, which shews that it was reasonable for the parties to enter into it,
the same is good.'* Again, " Wherever a sufficient consideration appears to
make it a proper and an useful contract, and such as cannot be set aside
without injury to a fair contractor, it ought to be maintained "(J). Again,
** In that case (e) all the reasons are clearly stated, and indeed all the books,
when carefully examined, seem to concur in the distinction of restraints ge*
neral and restraints particular, and with or without consideration, which
stands upon very good foundation ; volenti non fit injuria; a man may upoii
a valuable consideration, by his own consent, and for his own profit, give
over his trade, and part with it to another in a particular place "(/}. This
must mean that he may part with it for ever if he likes. The whole of that
judgment is in favour of the plaintiff in this case. — [Lord Abinger, C. B. —
Did that case turn entirely on the point of want of consideration for the re-
straint?]— Yes, it did. There the restraint was confined to twenty-five
years ; but if it was good for that time, it would be equally good for one
hundred, or any number of years, as no line can be drawn in that respect.
If the objection made in the present case is to prevail, all the reported cases
where the restraints were not confined in point of time, were open to the
same objection. In Chesman v. Nainby (g), to which reference is made in the
judgment of the Court of King's Bench, the restraint extended to the life of
Eich, Cham,
(a) 4 East, 190.
(h) Worral v. Hand, Peake, 74.
(c) 1 P. Wmi. 181 ; 10 Mod. 27, 86, 130 i
Fort. 296.
id) lP.Wms.l82.
(e) Noy, 98 ; W. Jones, 13 -, Cro. Jac.
696; 3Rol. Rep.20l.
(/) IP. Wms.186.
(r)2Str.739 ; 2 L. Rajm.1466 ; 1 BrowD,
P.C.X34; Fort. 297.
Hitchcock
o.
COKBR.
468
"Esch. Chauu
Hitchcock
V.
COXSB*
TERM REPORTS » the EXCHEQUER CHAMBER.
the defendant, yet the hond was held good. In Davis v. Mason (d)^ a re*
straint limited to fourteen years was held good ; and that case is an authority
for the plaintiff, as by the judgment of the Court oi King's Bench it ought
also to have been limited to the life of the party. In Bunn v. Guy (^), the
restraint was not limited as to time, yet the contract was held good. That
case was referred to by the Court of Chancery, in the judgment given in the
case ofBoz<mv.FarUm(c), In the case of Haywardv. Young (jd^ a bond
conditioned not to set up a business, was held good ; yet there the cooditioo
extended to the whole life of the obligor. Homer v. Ashford {e\ is also an
authority in favour of the plaintiff. A manufacturer who has secrets in hie
trade, must surely be allowed to protect himself during the life of any perscNi
whom he takes into his manufactory as an assistant. — [Lord Abiager, C. B.— •
I think this case turns, not on the question whether the plaintiff had a good
reason to make this restraint, but whether it is a restraint against public po-
licy.— Alderson, B. — In Bunn v. Guy, the restraint was for life, yet it was
there held that the agreement was good.] — The case on which the decision
of the Court of King's Bench proceeded was that of Horner v. Graces (f) ;
but it is submitted on an erroneous application of that case. The two cases
differ essentially. The large extent of country comprehended within the
distance of one hundred miles round York, when considered with reference
to the nature of the particular occupation, was in that case decided to be an
unreasonable restraint of trade, as being more than a fair protection to the
interests of the party, and so large as to interfere with the interests of the
public. In this case the restraint as to time is not larger than the interests
of the plaintiff require, nor does it interfere with the interest of the public.
Applying therefore the test mentioned by the Court in Homer v. Graves^ to
the present case, this agreement is valid. In the cases of Bryson v. White*
h€ad(g), JVilliams v. IFilliams{h)f and Capes v. Hution (ij, the same principles
have been recognised.
Erie, (with whom was Montague Smith,) contr^, — This contract is void, on
the general principle that all agreements in restraint of trade are void, except
particular restraints on a good and adequate consideration ; Mitchel v. Rey^
noids. The Court has to consider, first, whether this restraint is wider than
is necessary for the protection of the plaintiff; and secondly, whether it was
made on a good and adequate consideration. In point of time it was wider
than was necessary, as it extends to the whole life of the defendant, whether
or not the plaintiff continues to carry on his business. It is for the plaintiff
to shew clearly to the Court, which he has not done, that this was necessary
for his interests, so as to bring himself within the exception to the general
principle. Next, the consideration, it is submitted, is certainly not a good
and adequate consideration so as to make this restraint valid. Nothing is
recited in the agreement as to be performed by the plaintiff; the defendant
was already in his service, and it appears almost to be a nudum pactum.-^^
[Lord Ahlnger, C. B. — The plaintiff took the defendant into his service in
consideration of his signing this agreement. — Alderson, B. — How is the Court
to decide on this record whether the consideration was adequate or not ?] —
(a) 5T. R. 118.
(6) 4 Kast, 190.
(c) 1 Meriv. 459.
(d) 2 Chit. R. 407.
e) 3 BiDg. 322.
) 7 Bing. 735.
&'
(^) 1 Sim. & Stu. 74.
(h) 2Swaoit. 253.
(i) 2 Huss. 357.
MICHAELMAS TERM, 1836. 469
There are several cases in which the Court has decided that question. In Eggh. Cham.
the case of Mitchel v. Reynolds^ the adequacy of the consideration was con- v^v^
sidered by the Conrt, as will appear on reference to the judgment. In an Hitchcoce
Anonymous case (a), a bond not to exercise a trade within a particular town Coxm.
was held void. — [Lord Abrngett C. B. — In that case the master got the bond
from his apprentice after he was bound to him. — Aiderson, B. — There was
no consideration whatever.] — In the Blachmith*s case (6), a similar bond was
held void. In Prugnell v. Gosse (c), it was said by the Court, that where
there was no consideration for the restraint, an agreement to enforce it was
void ; but the Court in that case, on looking at the interests of the parties,
decided that agreement to be valid. In the late case of Young v. Tim^
mins (d)^ Lord Lyndhurtt says that an agreement in restraint of trade must
be supported by an adequate consideration. — [Tindaly C. J. — Was not that
rather a case where there was no consideration whatever ? — Aiderson^ B. —
The consideration was to employ the defendant as theretofore, which was if
the piaintiff Uked,'] -Here also there was no time stipulated during which
the plaintiff was to employ the defendant ; it was therefore determinable
whenever the plaintiff chose. — [Lord Abinger, C. B. — There was an annual
salary ; the agreement, therefore, was for a year at least.] — For any thing
that appears, the engagement may have been put an end to by the plaintiff
immediately afler the agreement was signed, or even perhaps before, which
makes the case stronger than that of Young v. Timmins. In Gale v. Reed (e)t
a covenant to employ two persons exclusively in making cordage, was only
held not to be illegal as in restraint of trade, because, when the whole in-
denture was construed together, it shewed that the consideration was adequate^
being co-extensive with the restraint imposed. — \_Alderson, B. — Would Lord
EUenhorougKs decision in that case have been different had there been only
one farthing per cwt. allowed on the cordage, for that is the question which
arises in the present case ?] — He says that the restraint on one side should
be co-extensive with benefits to be enjoyed on the other. The judgment of
the Court in the case of Chesman v. Nainby is also in favour of the defend-
ant. The Court of Common Pleas, in the case of Homer v. Graves, seems to
have followed the principle, that it is necessary to shew that every restraint
is necessary, and was made on an adequate consideration. The Court says (y*),
** As to the consideration, it must be confessed it is very small, compared
with the restraint under which the defendant consents to place himself;'* and
then, after stating the circumstances of the case, they say, " Surely this
appears a very slender and inadequate consideration for such a sacrifice.*' —
ITindal, C. J. — The ground on which that judgment was given is contained
in the concluding words, that the restraint is *' far larger than is necessary
for the protection of the plaintiff in the enjoyment of his trade."] — The value
of the consideration also must surely have been one ground. If, in that case,
where the agreement was made for five years, and at a salary of 120/. and
upwards, it was held invalid, it must equally be held invalid in this case, where
no time is agreed upon, no salary is fixed, and nothing appears except that
the parties were placed in the situation of master and servant. The restraint
was also far larger than was required to protect the interests of the plaintiff,
and the judgment of the Court oi King's Bench must be affirmed.
(a) Moore, 115, pi. 266. (d) 1 Cr. & Jerv. 331.
(6) 2 Leon. 210 ; 3 Leon. 217 -, Mcore,242. (e) 8 East, 80.
(«) Aleyn. 67. (/ ) 7 Biog. 742.
470 TERM REPORTS in the EXCHEQUER CHAMBER.
Etch, Cham, Sir JV. JV, FoUett, in reply. — There is no case in which the Courts have
^^^/^^ decided on the adequacy of the consideration in the sense now contended for,
Hitchcock thoucrh there are several where the Courts have decided whether there was
CoKBR. ^^y consideration whatever. It is true the term " adequate** is used by
Lord Lyndhurst and Bayley^ B. in the case of Young v. Timmins ; but Tindai^
C. J., in the case of Homer v. Grarces, does not make use of the term. The
terms " adequate," *' good,*' and '* sufHcient,*' are used as convertible terms.
It is moreover impossible for the Court to examine into the adequacy of the
consideration in point of value in the sense now contended for. There is no
doubt but that this agreement was part of the original contract between the
parties. — [AldersoUi B. — It was nothing more than a written agreement to do
that which was originally contracted for.] — Exactly. The question is, whe-
ther the tigreement was oppressive or illegal. The case of Ridgway v. The
Hvngerford Market Company (a), shews that the defendant might have reco-
vered his wages as assistant for a year at least. In Davis v. Mason^ it was
held that a bond taken under circumstances similar to the present was good,
although the service was to continue so long only as it should please the
plaintiff. In Bunn v. Guy, the consideration was certainly different from the
present ; that was a consideration applicable to that business ; but in this
case, taking the defendant into the plaintiff's service at all, it is submitted, is
a sufficient consideration. The Anonymous case in Moore, and the Black'
smiths* case, were cases of no consideration whatever. The case of Young v.
Timmins is another of the same class. The judgment ofHullock, B. in the case
of ff'lckens v. Evans {b), may also be referred to, as in favour of the plaintiff".
— [Aldtrsont B. — In Bunn v. Guy, the counsel for the plaintiff first rested his
argument on the point of it being a nudum pactum, when Lord Ellenhorough
intimated that he could not succeed on that ground.] — But there is nothing
in that case to shew that the amount of the consideration was that on which
the Court founded their judgment. There is then in this case, on the face
of the agreement, a good consideration for the restraint imposed ; that re-
straint is not larger than is required for the protection of the plaintiff; and
the public cannot be injured by the defendant being prevented setting up
business in Taunton : the agreement therefore is valid, and the judgment
must be reversed.
Cur. adv. vuU,
TiNDAL, C. J. afterwards {February 26th) gave judgment. — The ground
upon which the Court of Kings Bench held, after a verdict obtained by the
plaintiff in this case, that the judgment of that Court ought to be arrested,
was, that the agreement set out upon the record, and upon which the action
was brought, was void in law, being an agreement in unreasonable restraint
of trade. For although the inadequacy of the consideration upon which the
agreement was entered into was urged in argument, as one reason for holding
the agreement to be void, and in the delivering the opinion of the Court
some reference was made to that objection, yet it is manifest that it formed
no part of the ground upon which the Court refused to give their judgment
in favour of the plaintiff. The consideration for the agreement in question
appears to have been the receiving of the defendant into the service of the
plaintiff as an assistant in his trade or business of a chemist and druggist, at
>
(a) 1 Uar. & Wol. 244 ; 3 Adol. & £1. 171. (6) 3 Younge & Jcrv. 318.
MICHAELMAS TERM, 18S6.
471
Hitchcock
V.
CUKER.
a certain annual salary ; and the agreement on the part of the defendant, Exeh, Cham.
founded upon such consideration, is, that if he should at any time thereafter,
directly or indirectly, in his own name or that of any other person, exercise
the trade or business of a chemist and druggist, within the town of Taunton,
in the county of Somerset, or within three miles thereof, then that the de-
fendant should, on demand, pay to the plaintiff*, his executors, administrators,
or assigns, the full sum of 500/., as and for liquidated damages.
The ground upon which the Court below has held this restraint of the de-
fendant to be unreasonable, is^ that it operates more largely than the benefit
or protection of the plaintiff can possibly require ; that it is indefinite in point
of time, being neither limited to the plaintiff's continuing to carry on his bu-
siness at Taunton, nor even to the term of his life. We agree in the general
principle adopted by the Court, that where the restraint of a party from car-
rying on a trade is larger and wider than the protection of the party with whom
the contract is made can possibly require, such restraint must be considered
as unreasonable in law, and the contract which would enforce it must be there-
fore void. But the difficulty we feel is in the application of that principle to
the case before us. Where the question turns upon the reasonableness or
unreasonableness of the restriction of the party from carrying on trade or
business within a certain space or district, the answer may depend upon
various circumstances that may be brought to bear upon it ; such as the
nature of the trade or profession, the populousness of the neighbourhood,
the mode in which the trade or profession is usually carried on ; with the
knowledge of which, and other circumstances, a judgment may be formed
whether the restriction is wider than the protection of the party can rea-
sonably require, lint, with respect to the duration of the restriction, the case
is different. The good-will of a trade is a subject of value and price ; it
may be sold, bequeathed, or become assets in the hands of the personal
representative of a trader ; and if the restriction as to time is to be held to
be illegal if extended beyond the period of the party by himself carrying on the
trade, the value of such good-will, considered in those various points of view,
is altogether destroyed. If, therefore, it is not unreasonable, as undoubtedly
it is not, to prevent a servant from entering into the same trade in the same
town in which his master lives, so long as the master carries on the trade
there, we cannot think it unreasonable that the restraint should be carried
further, and should be allowed to continue if the master sells the trade or
bequeaths it, or it becomes the property of his personal representative ; that
is, if it is reasonable that the master should by an agreement secure himself
from a diminution of the annual profits of his trade, it does not appear to us
unreasonable that the restriction should go so far as to secure to the master
the enjoyment of the price or value for which the trade would sell, or secure
the enjoyment of the same trade to his purchaser or legatee or executor ;
and the only effectual mode of doing this appears to be by making the
restriction of the servant's setting up or entering into the trade or business
within the given limits co-extensive with the servant's life. And accordingly,
in many of the cases which have been cited, the restriction has been held
good, although it continued for the life of the party restrained ; and, on the
other hand, no case has been referred to where the contrary doctrine has
been laid down. In Bunn v. Gi/^, a covenant by an attorney, who had sold
his business to two others, that he would not, ader a certain day, practise
472
TERM REPORTS in the EXCHEQUER CHAMBER.
Eieh. Cham.
Hitchcock
V.
COXER.
within certain limits as an attorney, was held good in law, though the re-
striction was indefinite as to time. In Chesman v. Nainhify the condition of
the bond was, that Elizabeth Vickers should not, after she left the service of
the obligee, set up business in any shop within half a mile of the dwelling-
house of the obligee, or of any other house that she, her executors or admi-
nistrators, should think proper to remove to in order to carry on the trade ;
and in that case the contract was held to be valid, though the restriction was
obviously indefinite in point of time, and although one of the grounds on
which the validity of the contract was sought to be impeached was, that the
restriction was for the life of the obligor. Again^ in Wickens v. Evans, the
agreement in restraint of trade was made to continue during the lives of the
contracting parties, and no objection was taken on that ground.
We cannot therefore hold the agreement in this case to be void, merely on
the ground of the restriction being indefinite as to duration, the same being
in other respects a reasonable restriction.
But it was urged in the course of the argument, that there is an inade-
quacy of consideration in this case with respect to the defendant, and that
upon that ground the judgment must be arrested. Undoubtedly in most,
if not all the decided cases, the judges, in delivering their opinion that
the agreement in the particular instance before them was a valid agree-
ment, and the restriction reasonable, have used the expression, that such
agreement appeared to have been made on an adequate consideration,
and seem to have thought that an adequacy of consideration was essential
to support a contract in restraint of trade. If by that expression it is
intended only that there must be a good and valuable consideration, such
consideration as is essential to support any contract not under seal, we
concur in that opinion. If there is no consideration, or a consideration of no
real value, the contract in restraint of trade, which in itself is never favoured
in law, must either be a fraud upon the rights of the party restrained, or a
mere voluntary contract, a nudum pactum, and therefore void. But if by
adequacy of consideration more is intended, and that the Court must weigh
whether the consideration is equal in value to that which the party gives up
or loses by the restraint under which he has placed himself, we feel our^
selves bound to differ from that doctrine. A duty would thereby be im-
posed upon the Court in every particular case which it has no means what-
ever to execute. It is impossible for the Court, looking at the record, to
say whether, in any particular case, the party restrained has made an impro-
vident bargain or not. The receiving instruction in a particular trade might
be of much greater value to a man in onfi condition of life than in another,
and the same may be observed as to other considerations.
It is enough, as it appears to us, that there actually is a consideration for
the bargain, and that such consideration is a legal consideratron and of some
value. Such appears to be the case in the present instance, where the de-
fendant is retained and employed at an annual salary. We therefore think,
notwithstanding the objections which have been urged on the part of the
defendant, that the plaintiff has shewn upon the record a legal ground of
action, and having obtained a verdict in his favour, that he is entitled to
judgment.
Judgment for the plaintiff.
END OF MICHAELMAS TERM.
DIGEST
OP THE
CASES REPORTED IN THIS VOLUME.
CONTAINING
THE DECISIONS OF THE COURT OF KING'S BENCH AND BAIL COURT,
FROM
Easter Term, 6 Will. IV. 1836, to Michaelmas Term, 7 Will. IV. 1836, inclusive.
ACTION.
See Statvtb of Frauds, 1. Pleading, 23, 25.
ADVERSE POSSESSION.
See Mortgage, 1. Poor, 9.
ADVOWSON. — See Ecclesiastical Law.
AFFIDAVir.
See Practicf, I. Attachment, 2, 3, 4. Grand
Jury, 3.
AGENT.—See Assumpsit,!. Evidence, 2.
AMENDMENT.
1 . The declaration in an action for an escape, con-
tained only one count, allegino; an escape, against the
sheriff. The evidence proved a negligent omission
by the sheriff 's officer to make the arrest when he
had it in his power to do so. The judge was applied
to to amend, but refused to do so. He left the ques-
tion of a negligent omission to the jury, who found
generally for the defendant, and that in the afHr-
mative ; and the special finding was indorsed on the
record : — Held, that the plaintiff was entitled to have
a judgment entered according to the special finding.
Guest v. El toes, 34.
2. In order to entitle a paity to have judgment
entered for him under the 3 & 4 Will. 4, c.42, " ac-
cording to the very right and justice of the case," he
must apply to the judge who tries the cause to amend
the pleadings before the verdict has been pronounced.
After verdict it is too late. Serjeant v. Chafey, 273.
3. A verdict having been taken by consent, subject
to a reference to arbitration, the arbitrator certified
that it would be agreeable to the justice of the case
to amend the replication, which traversed a pniticulai
allegation, by substituting a replication of de injurid ;
the Court refused to make the amendment. Cross v.
Metea^, 377,
VOL. II.
APOTHECARY.— See Pleading, 4, 5.
APPRENTICES.~See Poor, 1,2, 3, 4,5, 6.
ARBITRATION.
See Amendment, 3. Attachment, 2, 3, 4, 5.
Practice, 53, 82. Statute of Frauds, 1.
1. The statutes 9 & 10 Will. 3, c. 15, and 3 & 4
Will. 4, c. 42, as to references to arbitration, apply to
civil proceedings only. I'herefore, by the 39th sec-
tion of the latter act, a party to a reference of a cri-
minal proceeding, is not restrained from revoking the
authority of the arbitrator. The King v. Bardell,
401.
2. An umpire was appointed by lot, in conse-
quence of an agreement by the arbitrators. This was
not known or assented to by the parties, but was
known to the attorney of the party applying to set
aside the award. When, however, the umpire was
so appointed, he was specially objected to by the
arbitrator appointed by tnat party ; and that fact was
not known to the attorney: — Held, that there was
not a sufficient assent to the mode of appointment,
because the whole facts were not within the know-
ledge of the party assenting, and consequently that
an award made by an umpire so appointed, was bad.
Jn re Jamieson, 35.
3. Quere, whether the attorney had power to bind
his client by such an assent. Id.
4. Two arbitrators were empowered to decide,
among other matters, on what terms a building lease
held by an individual under a corporation should be
renewed* The arbitrators awarded that the corpo-
ration should put the premises in " good tenantaolc
repair, &c. to the satisfaction of J. M. of S., in the
county cf K., builder :" — Hvld, that this reference of
the repairs to the judgment of a third person was not
within the authority of the arbitrators, and made the
award bad. Tomlin v. The Mayor and Corporati<m
ofFordwich, 172.
1 1
474 DK
5. A CS1ISC, in whidi tliere were several issues,
was rerciied lo aibilralion, the costs to abide the
event. 'I'hc arbitralor awarded on eacli issue sepa-
ralelv, and pailly for eacli parly, but gave no direc-
tion for entering a verdict or a noUe proj^ni -.—HiUl,
that the award was sulTiciently final, so that (he costs
could be taxed. Ctarki v. Oi»n, 324.
fi. He also awarded that (he derendant should pay
a certain sum. " together with the costs of the suit
and reference, eofac as they shall have been taxed by
the proper officer on the 71h November ;" — Ilrlii,
that this was doI au award of what cos(s were (o be
paid, but only as to the time when. Id.
7. A rauae in which there were three issues was
referred lo arbitration at Aiii Frim, on the usual
(erms. I'he aibitiator Tound two issues fat the
plaintiff, and one for the defendant, and said in his
award, " that if there had been no issue relative (a
the consent, (the nialler in issue on the one found
for the defendant,} 1 should have awarded li. da-
mages to the plaintifT upon (he other issues:" —
Hild, that the plaintiff was not entitled to move the
Court for judgment nnn i/hitatitt vertdicto on the
issue found for the defendant. Sietfla v. BonuJi,
II.
8. Such an Hvard ii suAiciently final. Id,
9. In aa action by an attorney, on a bill of costs,
a verdict was taken by consent, and the matter was
leferred, together with all tnatten in difference. Ano-
ther bill of costs was also disputed before the arbi-
(ralor. Me merely awarded that the verdict should
be entered for a certain sum, and that the defendant
should pay (he costs of (he rcfereuce, without aaying
(hat that sum was for (he Gist bill of costs, or making
any mention of the second bill -.—[letd, that the
awud was bitd. Ggde v. BoucAtr, 127.
ASSIGNMENT OF PROPERTY'.
SeePLE*niNO,26..
I. If A., in order to pay B. a sum of money,
assigns (a B. all his interest in a debt due from C, it
is not necessary that a strictly formal notice of such
assignment should be given (o C. Tibbilli v. Gtnrge,
made of an equitable ii
154.
2. An assigntni
leresl need not be
ossignmenl, will the insolvency of A. .before (he whole
tiansaction is complete, vest the right to the debt
assigned in the insolvent's assignees. Id.
3. Though (he deb( asugned may l« more th^n
will cover U.'s demand, the existence of a residuary
interest in it in A., will not prevent (he vesting of the
assignment in B., nor make him a trustee for A.'s
; (heir interests are separate and inde.
asstenees ; (hei
pendeD(. Id.
.: All innkeeper being indebted to several persons,
made two of his creditors trustees, and conveyed all
bis estate and eflects to (hem, in trust, " to sell when
they should think proper and advantageous:" and
upon trust, so long as they siiould think it ileiinble
and advantageous, to continue and cany on the
business, and pay and apply the monies arising
ilelts ; and 3dly, in payment of any expei
sary for carrying on the business, and the surplus
nnto and amon^t themselves and all other creditors
who should execute (he deed within three months ; —
Hild, thai this deed was void, as it contained such
an impo^tioD of terms as no creditor was bound to
submit to. Oieeav. Bmlii. 31.
5. StmbU, ihflt such creditors as did come in and
execute would be partners, and subject to the bank>
rapt laws. Id,
6. Al the time the deed was executed, the trader
had omitted lo renew hit expired annual wine, beer,
and spirit licences, but at the next first opportunity
they were renewed by the trustees : — HtlJ. that this
cireumsiance formeJ no objection to ihe deed, on the
ground that it was an aisigument to persons to carry
on an illegal trade. Id.
ASSUMPSIT.
See Cartiier, I. HueeiND and Wife.
1. If a person, who is no( a genera] agent, lias money
d it for that pi
knowledges he has received ii
It purpose, the
ilfy>.Hfl>|i,31
3. A person lo whom a bill was intrusted, wrong-
fully paid it into his bankers on liis own account,
and received credit for Ihe amount, but never drew
specifically upon the credit of the bill. An action
for money had and received was hiought by the
owner of the bill before it became due: — lUld, Ibal
it was not maintainable, .4l(tni v. Omen, 59.
3. A party knowingly arrested another for an un-
founded claim. The party arrested, in order lo
obtain his discharge, paid a part of Ihe amount, and
entered into an agreement lo put in bail for the re-
mainder;— Htid, that he might recover back the
amount paid, in an action of ajiuinpiil for rooney
had and received. Duke dt CoiJamf v. CoUhs. 54.
ATTACHMENT— See PH:>cTice, 44. SutRiFr, 1.
I. An indictmentagainst several persons was removed
into this Court by rcninruri. wiliiout the consent of
one of the defendants, who afterwards was alone tried
on it and found guilty, the other defendants having
come to an arrangement with thi prosecutor ; he was
afterwards taken on an allachment for the costs of
the prosecution, but Ihe Court, under the circum-
stances, discharged him. TliiKivg v. Ilaiul, 321.
3. An affidavit in support of an attachment for
n on- performance of the award al T. Wood, by mis-
take stntej a service of the award of T. Ward (here-
unto annexed: — ffaJd, that the mislake was imma-
(erial. .^mitb v. TInrei, 306.
3. Such an affidavit need nol stale that the lime
for making the award had been enlarged, Ihe en-
largement having been made a rule of Court. Id.
4. The awarddirecledlhat ihe coitsshould be borne
in equal moieties, and that if either party paid the
whole, ihe other should repay the moiety ; ihe affi-
davit in support of an attachment for nun-payment of
ihe moiety, must state that the parly had paid the
whole, and it is not safRcient to state thai the other
party was informed that the whole had been paid. Id.
DIGEST.
475
5. The award having direeted the delivery op of
a particular box, which was a matter not specifically
referred to the arbitrators, but which had been parted
with before the date of the submission, an attachment
cannot be granted for non-performance of that part
of the award* Smith v. Reeves, 306.
ATTORNEY.
See Arbitration, 2, 3, 9. Costs, 17. Inn of
Court. Judgment, 2. Lien. Practice, 41.
I. Admission and Re-admission,
1. Rules as to the admission and examination of
attornies, E. T. 6 Will. 4, 1836, 1.
2. The rule which requires notice to be given by
an attorney, of his intention to apply for admission,
" three days, at the least," before tne term, must be
construed as if it required ** three clear days,*' and
the days must all be exclusive. Anon, 65.
3. The Court will, under particular circumstances,
dispense with a term's notice in the case of the ad-
mission of an attorney. Kx parte Handcock, 99.
4. An attorney who wanted to go abroad to prac*
tise, allowed to be admitted on the last day of the
term previous to that in which he would strictly have
l)een entitled. Ex parte Jmxcsou, 85.
5. Where a person, during his clerkship, changed
his name, and by mistake forgot to put up both his
former and present name in his notice, the Court, on
being satisfied that it was solely from mistake that he
had omitted to do so, permitted him to give notice at
the end of one term for admission in the next. Kr
]Mirte Ridley, ^,
6. An attorney, who by mistake in not taking out
his certificate, was oflF the roll for two days, was
allowed to be re-admitted without giving the usual
notice. Ex parte Minchin, 326.
7. An attorney, who while off the rolls has practised
in a borough court, may be re-admitted without pay*
ment of fine or of the arrears of duty. Ex parte
Thomson, 327.
8. A person who has been off the roll of attorneys
for thirty years cannot be re-admitted. Ex parte
Billings, 327.
II. Summary Jurisdiction of the Court,
9. A person who had been an attorney of the Court
of Great Sessions, and who had been admitted an at-
torney of the Court of King's Bench, under stat. 1 1
Geo. 4 and I Will. 4, c. 70, cannot be called on sum-
marily to answer for misconduct committed when an
attorney of the Court of Great Sessions. In re Wil-
liams, 294.
10. Semble, an attorney cannot be called on to answer
the matters of an athdavit, shewing malpractice in
hiring bail. Clifford v. Parker, 297.
1 1 . An attorney who took a bill of exchange from a
defendant, in order to settle the plaintiff's bill of
costs, and who omitted to do so, but made use of the
bill of exchange, cannot be called on to answer the
matter on affidavit. Ex parte Scott, 296.
12. The Court will not summarily compel an attor-
ney to perform an undertaking given by him to in-
demnify a nominal defendant in an ejectment. Ex
parte Clifton, 296.
13. An attorney who acted for one of the parties to
an arbitration, and who gave his undertaking to pay
a certain sum for his client in order to save the ex-
pense of a formal award, may be called on summarily
to perform his undertaking, although no cause was
depending in the Court. Ex parte Fryer, 294.
III. Other Matters.
14. If an attorney brings an action within a court
of limited jurisdiction, knowing that the circumstances
which gave the right of action arose without the juris-
diction of such court, he is guilty of negligence. Wil-
liams V. Gibbs, 241.
15. If a plaintiff colludes with the defendant and
settles the action, so as to deprive his attorney of his
right to retain the sum recovered for costs due to him,
the attorney cannot go on and compel the sheriff to
return a writ of ca. sa. Hedges v. Jordan, 92.
16. A charge for advising a client as to an execu-
tion on a judgment obtained against him, is not a
taxable item in a bill of costs, so as to require a
signed bill to be delivered before bringing an action.
Pepper v. Yeatman, 116.
ATTORNMENT.
See Ejfctment, 11, 12. Stamp, 2.
AUCTION.— See Evtdf.ncp. 12.
BAIL.— See Practick, II.
BAILIFF OF A LIBERTY. -See Practice, 81.
BANKRUPT.
See Assignment of Property. Corporation, 2.
BASTARD.— See Sessions, 1, 2, 3, 4, 5.
BILL OF EXCHANGE.— See Evidence, 7, 9.
1. Where a drawer of a bill of exchange is one of
the partners of a firm by which it is accepted, the
notice which any one of the partners of that firm
receives of its dishonour, is notice sufficient to bind
the partner who is the drawer. Hilts v. Tltorow-
good, 102.
2. In such a case it is not necessary to prove that
the partnership was in existence at the time the bill
became due. Id.
3. A. made a promissory note payable to B. or his
order. C. indorsed it ; — Held, that by this indorse-
ment C. did not become a new maker of the note,
but was liable only in his character of indorser, and
was as such entitle<l to notice of dishonour. Gwin*
veil V. Herbert, 194.
CAPIAS.— See Practice, 51, 52.
CARRIER.
1. A parcel directed to London was delivered by the
plaintiff to a carrier at Bradford ; no directions were
given him as to the mode of conveyance. He left it
at an inn in Melksham, where the defendants' and
many other coaches were in the habit of calling for
parcels to be conveyed to I^ndon. The innkeeper
delivered the parcel to the defendants' coachman,
who paid him for the carriage from Bradfoid to Melk-
sham : — Held, that the de^ndants were liable to the
plaintiff, in an action of assumpsit, for the loss of the
parcel. Syms v. Chaplin, 41 1 .
ii2
476
DIGEST.
2. An inn where a coach regularly stops to receive
and deliver parcels, is a receiving-house within the
meaning of the Carriers' Act, 11 Geo. 4 and 1 Will.
4, c. 68, although other coaches stop there for the
same purpose, and although the innkeeper keeps but
one general booking-book for all the coaches, and
uses his own discretion as to the coach by which the
parcel is senU Syms v. Chaplin, 411.
CERTIORARI.
See Attachment, 1. Higiiwav, 3.
1. The Court will not grant a certiorari to re-
move an indictment for obstructing a highway, unless
some particular ditliculty is specified as likely to arise
on the trial. The King v. Jowl, 375.
2. Certiorari to remove an indictment found at
sessions, on the ground that a magistrate was in-
terested in the matter, granted to a prosecutor. The
King V. Jones, 293.
3. Certiorari to remove an indictment for keeping
a gaming-house refused to the prosecutor, where it
was suggested that questions would arise on an ac-
quittal on a foimcr indictment, in which the house
had been misdescribed. The King v. Hancock,
293.
4. A certiorari does not lie to remove an indict-
ment from the Central Criminal Court, on the ground
that difficult points of law will arise on the trial of the
case. The King v. Templar, 430.
5. Certiorari to remove an indictment from the
Central Criminal Couit granted, although one of the
defendants did not consent to it, he appearing to
collude with the prosecutor. The King v. Connop,
81.
6. Where an act of parliament authorised justices
to make an order, but provided that such order should
have no effect until it had been confirmed and in-
rolled by the sessions: — Held, ih^t the six months
within which, under 13 Geo. 2, c. 13, a certiorari to
remove it must be applied for, do not begin to run
until the order has been confirmed and inrolled. The
King V. The Justices of Middlesex, A07,
7. A recognizance entered into by only two of the
inhabitants of a parish, on removing by certiorari an
order of justices in a parish appeal, is not sufficient,
according to the provision of 5 Geo. 2, c. 19, s. 2.
The King v. The Inhabitants of Abergele, 375.
8. A certiorari to remove an order of justices, ap-
plied for before, hut not obtained till after the expi-
ration of six months aftertheoider was made, is in time.
Id.
9. The recognizance being insufficient, the Court
sent the writ down again to be allowed, on a proper
recognizance being entered into. Jd,
10. With respect to proceedings under the General
Turnpike Act, 3 (n 4, c, 126, the certiorari is not
taken awajr by 4 Geo. 4, c. 95. The King y. The
Trustees of the Norwich and Watton Turnpike Road,
385.
CHAITEL.— See Trover.
>
CHURCHWARDEN.
See Officer. Inclosure, 1. Rate.
CLERK, PARISH.- Sec Poor, 7.
COGNOVIT.
The attestation to a cognovit given by a person in
custody, must state expressly that the witness sub-
scribes as attorney. A'lr^e v. Dark, 94.
COMPENSATION.— See Statute, 1.
A dock act gave a Company power to purchase
houses, &c., stop up streets, make cuts, and do other
things necessary to carry the object of the act into
effect ; and it provided, " that if any person having
an estate or interest, not less than a tenancy from
year to year, in any houses, lands, or hereditaments,
should be injured m his, her. or their said estate or
interest by the making of any such cut &c., he, she,
or they should be compensated." Two parties
claimed compensation in respect of the destruction
of the business of a public-house by the removal of
the neighbourhood and the stopping up of the ways :
— Held, that this was not such an injury to " estate
and interest" as to entitle them to compensation.
The King V. London Dock Company, 267.
CONTRACT.— See Statute of Frauds.
CONVICTION.— See Forcible Detaiker.
COPYHOLD.— See Mandamus, 4. Manor.
Where an admission to a copyhold is made in pur-
suance of a surrender, or what oy statute is equivalent
thereto, and not as or in consequence of a voluntary
grant by the lord, the lord's title is immaterial. Doe
d. Burgess v. Thompson, 451.
CORPORATION.
See Lien. Manoamits, 2. Quo Warranto.
1. It seems that the 68th section of the 5 & 6 W. 4,
c. 76, applies to charges voluntarily created by a
corporation : the 71st section, to estates left to the
corporation by other persons for charitable purposes.
The King v. WUliams, 275.
2. The sututo 5 & 6 Will. 4, c. 76, (the Municipal
Corporation Act,) does not disqualify an uncertificated
bankrupt from being elected mayor, alderman, or
councillor. The King v. Chitty, 399.
COSTS. — See Attachment, 1. Attorney, 16.
Mandamus, 10, 11.
1. The Court of K. B. cannot grant costs to the pro-
secutor in a Court below, although those costs have
been incurred in consequence of the defendant having
sued out and improperly kept, without giving notice
of it, a certiorari, which has been afterwards quashed •
The King v. Higgins, 397.
2. Rule to compel a third person to pay defend-
ant's costs of an action, on an affidavit that it was
** believed" he had in fact defended the action, re-
fused. Blewitt V. Tregonnin, 325.
3. A plaintiff having recovered by verdict a sum
of money beyond another sum paid into Court, the
two sums together amounting to more than 20/. : —
Held, that the taxation of costs ought not to be on
the reduced scale ordered in H. T. 4 Will. 4. Master$
v. Tickler, 81.
4. Ad jaiefeatin the water appurleoaat to a dwell*
ing-hoiue is an interesl in land, and wh«re luch an
inteicat cornea in question, the Court will alloir ihc
plaintiff fall costs, DotwilliitaDding a certificate (hat
the damagm were for a mm leu than 40i. Tyltr v.
Benitill, 372,
5. The defeadaot was arrested for 201. 3i, Id. far
goods aold and delirered. I'lea, infaacy, Replica-
Uou, that the goods were necessaries. Verdict for
lOJ., the price of the goods proved to have been deli-
vered. Ihe alEdavit of the dereDdant elated that he
never owed 201. ; the affidavit of the [lUinliff, thai
Boods 10 the amount of upwards of 1101. had been
delivered, and ihal the judge certified thai the cause
was a proper one to be tried before him : — Held, that
the dereodant wns entitled lo his costs under 43
Geo. 3, c. 46, Ballanty»t V. 'Ajlor, 463.
6. A verdict having been Uken h; canseut for the
plainlifT, and the cause and all matters in diflerence
referred, the arbitrator awardeil a less sum lo t)iu
plaintiff than that for which he had arrested the de-
fendant, and then awarded separately on the other
matters referred :—H(U, that llie defendant vns not
precluded from having liis costs under 43 Geo. 3,
c,46. JoHiiY.Jeliu, 119.
7. If the Court, on the authority of the report of
iu officers, pronounces, for the first time, a praceed-
ing to be irregulir, the party cominitling the irregu-
larity must pay the costs occasioned by it. Anon, 64.
8. If a jury find a verdict for a sum above 40i,,
which is reduced below that sum by Ihe Court on a
point of law reserved, the plaintiff may be deprived
of his costs under the Middlesex Counly Court Act.
irilllv.Lan£ri<fge,309.
9. It is immaterial that the point of law arose on
the absence ol some formal evidence which might
have been supplied, id.
ID. A rule cannot be granted to enter a auggestioo
to depriie Ihe plaintiff of his coils, under KCt. 19 of
thai act, unless the cause of action arose withiti the
county of Middlesex, ai well as the defendant resided
there. Id.
II. Where it appeared th all he defendant resided in
Middlesex, but it did not appear where the cause nf
action arose, the Court presumed that it arose in
Middlesex, and therefore made such a rule abtolute.
12. Stmbli, it is no objection to such a rule, that
the sheriff, before xhom Ihe cause waa tried, cannot
give Ihc ceniGcate mentioned in sect. 19 of ihe act.
Id.
13. A plaintiff having obtained a verdict, a new
trial was afterwards granted, the rule being silent as
to coata. Notice of trial was given by the plaintiff.
Before ihe time of trial came on, the defendant with-
drew his pleas, and judgmeol weal bydefanli: —
Htld, that the plaintiff was not entitled to the coats
of tbe trial. Peatacki. //arris, 456.
14. To a special action on an agreement with
an account stated, the defendant pleaded, fint, nou
asiumpiit ; secondly, that ibe agreement wai ob-
tained by fraud and coving and, thirdly, that the
agreement waa void, being an agieement for an
interest in land, and not being under seal. The
plaintiff look issue on the two first pleas, and de-
mumd to tbe last. The canie wu Iricd, and the
plaintiff recovered a verdict with damages on tho is-
sue aa to fraud and covin, but gave no evidence of an
account stated, and the defendant therefore had a
neral costs of the cause on Ihe issue aa to the fraud, de-
ducting from Ihem the cosis on Ihe Issue found for the
defendant, and tho costs uf the demurrer ; — Htid,
that the JVtostcr bad properly allowed these costs: —
Held, also, that a parly enlilled lo the coats of the
pleadings on any issue found for hiin, is entitled to all
othei eipenses incidental lo those pleadings. Bird
y.lIigghL>on,216.
15. Where an Issue ia lo be Iricd and a demurrer
to be argued, the plaintiff need not delay trying his
cause till the demurrer has been decided ; and if the
issue ia found in his favour, and the demurrer is de-
cided agslnbthim, though that deiiturrer may go lo
his right of action, he will alill be enlitled to the costs
>r tbe is
JJ.
16. Where one of several defendants succeed* in a
suit, lie is to be allowed not only his separate custi,
but his portion of the joint cotis, unless the Master
ia aatiafiad thai he has been Indemnified. Gambrett
V. Lard Falmaiilh, 287.
17. Where the defendant has been entitled lo cer-
tain coats, and lhe»a have been dcdncted from Ihe
plaintiff's coata, and an affucaliir given for Ihe balance
of any money previously paid by the plaintilFlo his
allomey, such money must be deducted from tbe
amount of the alioradir, and Ihe lien of tho attorney
win he hmited to the final balance. Cam v. Adami,
COUNTY COURTS.— See Cosra. 8, 9, 10, 11," 12.
COVENANT.— See Lanj>u>bd i«t, T»n*5(t, I.
CftlMINAL INFOHMATION.
A rule nisi for a criminal informalion was dia-
chai^ed upon the aflidavit of a person swearing lo
the truth of the tibel. Upon subsequent affidaviU
shewing the entire falsehood of the former aflidavit,
ihal the person making it had been indicted for per-
jury, a true bill had been found, and that he had ab-
sconded, the Court re-opened the rule which had
been diacharced, and made it absolute. Tht King v.
E«, 450.
CRUELTY TO ANIMALS.-SceTnEai*ss.
CUSTOM.— See Mxvon.
CUSTOM-HOUSE DUTIES.- See Ms^DAMUB, 3.
DESCENT OF ES1.\TE.-See Estate.
DISCHAUOE OF PHI30NER.
See PnicncE, 23, 30, 55. PRieo.-iEs.
DISTRESS.
See Justices OF 1IIE PcAci. Replcvih. Siwiat.
WianiKT OF Ju!>TICB>.
DISTRINGAS— See Practicc, lEl,
478
DIGEST.
EASEMENT.— See Costs, 4.
1. A right to take water from the pond of another
is a mere easement, and not a profit a prendre. Man-
ning V. Wasdale, 431.
2. SembU, that in an action by the occupier of au
ancient messuage for the disturbance of such right,
in averment that he was entitled ** to wash and water
his cattle in a certain pond, and to take and use the
water thereof for culinary and other domestic par- i
poses, fmr the more convenient use and enjoyment of ;
the said messuage," would be, on general demurrer, !
a sufficient restriction of such right, even if it were a
profit a prendre. Id.
ECCLESIASTICAL LAW. ,
See Habeas Corpus. pRoniBiTiON.
Where the holder of a living has rendered that
living voidable by the acceptance of another, but no
proceeding has been taken to avoid it, the right of
presentation will pass to a purcliaser by the convey-
ance of the advowson, and such purchaser may at
once avoid the living, and present his own cleik.
Alston v. Atlay, 166. '
EJECTMENT. — Sec Copyhold. Landlord and
Tenant,!. Limitation of Action, 4. Moutgage.
I. Service. '
1. Rule nisi for judgment against the casual ejec-
tor, granted in Trinity Term, when the declaration >
was served just previous to the terra, and the notice
required the tenant to appear in next Easter Term.
Doe d. AU Souls College v. lioe, 138. i
2^ If the notice at the foot of the declaration in ;
ejectment is addressed to two persons who are joint- I
tenants, one only of whom is served, the rule for
judgment against the casual ejector can only be for
the premises in the possession of the one served.
Doe d. Hewson v. Hoe, 334.
3. W'here four out of five parish officei-s were served
in ejectment, the rule for judgment against the casual
ejector can only be as to the premises in the posses-
sion of the four. Doe d. Weeks v. lioe, 335. '
4. Service in ejectment on one tenant, of a decla-
ration and notice addressed to another, is not good.
Doe d. Smith v. Roe, 332.
5. Service of a declaration in ejectment on the
landlord alone, of premises let by him in single rooms
tu weekly lodgers, is not sufficient, unless he occupies
part of the house sought to be recovered. Doe d.
Hubbard v. Uoe, 333. i
6. Rule granted to shew cause why service of a de- 1
claration in ejectment on the clerk of an incorporated i
company, should not be good service. Doe d. Ross v.
Roe, U4.
7. Rule nisi granted for judgment against the
casual ejector, where the tenant in possession was
keeping out of the way, and service had been made '
on a person who kept the key of the premises. Doe
d. Childers v. Roe, 121.
8. Service on an under-tenant of part of the pre-
mises, cannot be considered as service on a joint-
tenant. Id,
9. A rule nisi for judgment against the casual
ejector refused, although it was quite clear he had
been keeping out of the way for some months before
the term, as the attempt to serve him was made only
the day before the term. Doe d. BrickdaU v. Roe,
333.
10. Rule nisi for judgment against the casual ejector
refused, where the service was on the day before the
term on a relation of the tenant, and the tenant on
the second day of the term acknowledged he bad re-
ceived the declaration, but refused to say on what day.
Doe d. Finch v. Roe, 334.
IL Other Matters,
11. Where a tenant attorned in 1801, but the per-
son then claiming title never entered into possession,
nor received rent; and the estate was, between 1801
and 1834, sold in several portions, and purchased by
the tenant's wife, who continued in possession till
nearly 1834, when ejectment was brought against
her ; this possession was held to be sufficiently ad-
verse to justify the judge in nonsuiting the plaintiff in
that ejectment. Doe d. Limey v. Edwards, 139.
12. Though the tenant, when he signed the attorn-
ment, was only tenant of one part of the estate, and
his wife subsequently purchased the other portions of
it — that attornment was held properly receivable in
the action against her, as part of the general evidence,
as to the rights of the plaintiff with respect to the
estate. Id.
13. In ejectment, afler a writ of possession exe-
cuted, and an action for mesne profits commenced, the
Court set aside the judgment and execution on pay-
ment of all the costs incurred, at the instance of the
landlord, who by a mistake had not had the copies of
the declaration, which had been served on his tenants,
delivered to him. Doe d. Bntler v. Roe, 130.
14. Application granted in ejectment under the
statute 1 Geo. 4, c. 87, s. 1, the tenant in possession
being the assignee of the original lessee. Doe d.
Watts V. Roe, 335.
ESCAPE.— See Amendment, i.
ESTATE, — See lNCLo.<unt, 4. Poor, 9. Will.
1 he son of one of two coparceners n\ade parti-
tion by deeds of lease and release with the alienee
of the other coparcener : — Held, that the son of the
coparcener who made the partition had the same
estate in the land as before, and took nothing as pur-
chaser, and that therefore the descent ex parte ma-
termi was not broken. Doe d. Crosthwaite v. Dixon,
364.
EVIDENCE.
See Pleading, I. Amendment, 1. Bill of Ex-
change, 2. Ejectment, 12. Limitation op
Action, 2, 3. Practice, 66. Stamp. Statute
OF Frauds, 2.
1. Neither the husband nor wife can be asked any
questions which directly tend to prove non-access, or
indirectly but necessarily lead to the same conclusion.
The King V. The Inhabitants cf Sourton, 209.
2. The letters of a person who in one year acted as
the agent of a company, are not evidence to affect
other persons who were members of that company in
the preceding year, but who were not proved to be
members of it at the time whw the letters were
written. Jones v. Shears, 43.
DIGEST.
479
3. Whetbcr a party who formerlj held under a
lease holds over, and continues tenant or not, is a
question of fact for u jury. Jones v. Shears, 43.
4. The declarations of an insolvent made at the
tinse of filing bis schedule to obtain bis discharge
under the Act for the Ilelief of Insolvent Debtors,
are not receivable in evidence in order to shew that
a deed of assignment, executed by him some time
previously, was so executed with the view or inten-
tion of petitioning for his discbarge. Peacock v. Har^
ris, 281.
5. In an action against one of two makers of a ioint
and several promissory note, the other maker ot the
note cannot be called as a witness for the defendant,
to prove that the consideration given for the note is an
illegal consideration. His interest in defeating the
note altogether renders him incompetent, iiitgg v.
P/*i7ii/)i, 51.
6. Evidence of a promise to pay, made within the
jurisdiction of a court baron, is not alone sufficient to
maintain an action for goods sold and delivered there.
Evidence of the consideration on which that promise
was made must also be given. Williams \,Gibbt,
241.
7. Where, in an action on a bill of exchange, the
pica shews the bill to have been an accommodation
bill, but does not shew fraud in its inception, a plain-
tiff is not bound to begin by going into proof of con-
sideration. Lewis V. Lady Parker , 46.
8. In assumpsit against the keeper of an oflke
for the booking, receiving, and forwarding of parcels,
who is not a carrier, for the loss of a parcel delivered
to him for the purpose of being forwarded, it is not
sufficient to raise even a primdj'aeie case against him
to shew the non-arrival of the parcel at the place of
its address : some evidence mubt be given to shew his
non-delivery of the parcel to a carrier. Gilbert v.
Dale, 383.
9. In an action upon a bill of exchange purport-
ing to have been drawn by A., resident abroad, upon
B., resident in England ; the plaintiff having proved
that it was seen abroad immediately after the uate of
it : — Held, that it was not necessary, in order to shew
that it was a foreign bill, also to prove that the bill
was then in an unaccepted state. DempilUtrs v.
Holdeit, 394.
10. An allegation in a declaration, that a plaintiff
was nonsuited in an action, is supported by proof
that in a case standing first in the list, aud depending
on tlie same circumstances, the plaintiff was non-
suited, and that when the second case was called the
judge intimated that he should nonsuit in the same
way, and to save expense the jury were not sworn, but
the clerk of the Court entered a judgment as in case
of a nonsuit in his books. Williams v. Gibbs, 241.
11. In an action of ejectment it was proved, that
on the occasion of a sale of the premises to the de-
fendant, a feoffment of them was banded over to him
by the then vendor, an attorney ', that the parties to
whose use the feoffment was made, had possessed
them ; and that after the execution of the feoffment,
and after their possession, the premises had been in
the possession of the vendor ; the execution of the
feoffment was attested by a witness, and there was an
indorsement upon it of livery of seisin, also attested
by a witness. At the trial an abstract of the feoffment
was produced by a witness, cletk to the vendor, who
proved that it was made on the occasion of the sale,and
bad been in bis possession ever since : — Held, that the
defendant must be presumed to bold under the feoff-
ment, and that not having, after due notice, produced
it, the abstract was admissible in evidence ; that it
was not necessary to call the attesting witness to
f»rove the execution, nor to give evidence of actual
ivery of seisin. Doe d. Howlandson v. Wainwright,
391.
12. Where an executor, before a sale of the goods
of a deceased testator, tells a legatee, that she may
purchase to a certain amount (the amount of her
legacy), and that such purchase shall be an off-set to
her legacy : such a declaration amounts to a special
contract as to the mode of payment, and may be given
iu evidence in an action for the value of the goods
sold, brought by the executor, though the sale was by
auction, subject to written particulars of sale. Bart-
leu V. Pernell, 16.
13. On an issue of payment of a sum of money in
discbarge, evidence was received of a check having
been sent by the defendant to the plaintiff for the ac-
count, but describing it as a balance : — Held, that
the Question was properly put to the jury to say
whether the check was tendered as money, and the
jury having found that it was not, the Court refused
a new trial. Hough v. May, 33.
14. To make a check amount to a payment, it must
be unconditional. Id.
EXECUTOR.— See Evidence, 12. Pleading, 12.
Practice, 82. Prohibition, 3.
FIXTURES^— See TiioriR.
FOOTWAY.-See Hichwat, 8.
FORCIBLE DETAINER.
1. Wheie a conviction on the statute 8 H. 6,
c. 9, for a forcible detainer, had been quashed for
want of any statement of an unlawful entry, the
inquisition taken upon such conviction must also be
quashed. The King v. Wilson, 226.
2. The magistrates acting under the statute having
awarded restitution of the premises, this Court, on
quashing the conviction ana inquisition, is bound to
award re- restitution. Id,
FRIENDLY SOCIETY.
See Justices of the Peace, 1.
GRAND JURY.
1. A grand jury must not consist of more than
twenty-three persons. The King v. Marsh, 366.
2. More than twenty- three having been sworn in,
the Court refused to quash an indictment found by
them after the defendant had removed it by certiorari,
and had taken his trial on it and been found guilty*
Id,
3. On a motion to quash an indictment, the Court
refused to listen to an affidavit made by a grand jury-
man as to what passed in the grand jury room. Id»
480
DIGEST.
GUARDIAN.
A father appointed two persons executors of his
will, and also guardians of the persons aod estates of
his children, and requested them, according to their
discretion, tu cause bis children to be properly brought
up and educated : — Held, that this appointment gave
the guardians the right to the custody of the children,
and the Court therefore took them out of the custody
of the grandfather and grandmother, against whom
there was no objection whatever, and who, at the
desire of the father, had come over from America to
take care of them, and directed that they should be
given up to the guardians. The King v. Isley, 196.
HABEAS CORPUS.
Habeas corpus to take a party, in custody under a
writ de continuance capiendo, before an Ecclesiastical
Court, to purge a contempt, refused bj this Court to
the party himself. Ex parte Strong, 292.
HIGHWAY. See Overseer, 1. Pleading, 27,28.
Statu rSf 1.
1. The provisions of the General Turnpike Acts, 3
Geo. 4, c. 126, s. 51, and 4 Geo. 4, c. 95, s. 31,
which exempt all persons from being rated in respect
of any tolls or toll-houses, apply to the trustees of a
road made under a local act ; although such trustees
are beneficially interested in the tolls, and although
some of the provisions of the general acts, and of the
local act, are inconsistent with each other. The King
V. The Trustees of the Great Dover Street Road, 423.
2. Where a juiy are impanelled under the General
Turnpike Act, 3 Geo. 4, c. 126, to assess the value of
the several interests of A., B., and C. respectively,
in land taken by the trustees, the inquisition mu^t
specify the sum due to each respectively. The King
V. The Trustees of the Norwich and Watton Road,
385.
3. The inquisition is the substantial and final part
of the proceedings, cannot be altered by the order of
the trustees, and a certiorari lies to remove the inqui-
sition before their order has been made. Id,
4. Semble, that the inquisition should set out the
notices given by the trustees. Id,
5. An act of parliament empowered certain trustees
to make a main road and several branches. They
made the main road and all the branches but one : —
Held, that a district, liable by prescription to repair
all highways lying within it, and through which part
of the main road passed, was not liable to repair that
part until the remaining branch was also completed.
The King v. The Inhabitants oj the Lower Division of'
Cumberworth and Cumberwarth-Half, 439.
6. Under 55 Geo. 3, c. 68, the justices have no
power to nanow a highway, or, in the same order, to
stop up more than one highway. The King v. The
Inhabitants of Milverton , 434.
7. An order purporting to stop up part only of a
highway, or more than one highway, is void. Id,
8. Under 55 Geo. 3, c. 68, the diversion and the
stopping up of a public footway, must each of them
be the subject of a distinct order, and one order pur-
porting to be both for the diversion and stopping up,
IS bad. The King v. The Justices of Middlesex, 407.
HUSBAND AND WIFE.
See Evidence, 1. Pleadino, 17.
A person who has laid out money for indicting a
husband for ill-usage of his wife, cannot recover it
from the husband on an im^lxtd assumpsit, Grindall
v. Godman, 339.
INCLOSURE.— See Statute, 5, 6.
1. The General Inclosure Act directs, that com-
missioners appointed under any private inclosure act
shall, when about to set out "the boundaries of any
parishes, manors, hamlets, or districts," give notices
under their hands and seals, to be affixed to the doors
of the churches of such parishes, and within one
month after setting out the boundaries shall cause a
description thereof to be left *' at the place of abode
of one of the churchwardens or overseers of the poor
of the respective parishes," not adding manors, ham-
lets, or districts. A commissioner appointed under a
local act gave the proper notices or nis intention to
the churchwardens of four several districts forming
one parish. These churchwardens were elected se-
perately by the different districts, but each was sworn
to act for the parish. The commissioner then ascer-
tained the boundaries, and gave a description thereof
and a copy of his determination to a churchwarden of
that district in which the parish church was situated :
— Held, that he had sufficiently complied with the
provisions of the statute; for though each district
elected its own churchwarden, yet each churchwarden
must be taken to be an officer for the whole parish.
The King v. Marsh, 355.
2. The words of the statute having raised the diffi-
culty, and the commissioner having acted with good
faith, the Court declared that it should require very
strong and convincing proof before it declared his act
invalid. Id,
3. On an appeal against a poor rate, the question
raised was, whether certain land was in a particular
parish, which depended on whether the commission*
ers had properly decided as to a disputed boundary
under the 3a section of the General Inclosure Act : —
Held, that the sessions properly refused to hear evi-
dence as to whether the preliminary notices were
given prior to the adjudication, as required by that
section. Id.
4. A local inclosure act, passed before the general
statute 1 & 2 Geo. 4, c. 23, enacted, that the lands
to be allotted and awarded, immediately after such
allotments were made, should be, remain, and enure
to the persons to whom they were allotted, who should
from thenceforth stand and be seised and possessed
thereof to such and the same uses, &c., as the several
and respective messuages, &c., in lieu of which such
allotments should be made* were held under. The
commissioners appointed under this act set out an
allotment to a person in lieu of certain open field
lands and rights of common, and gave him possession
of it, but did not execute their award until several
years afterwards : — Held, that under the above sec-
tion the legal estate passed immediately on the allot-
ment being made, and before the award was executed.
Doe d. Harris v. Sounder, 350.
INFERIOR COURT.
See Evidence, 6. Pbactice, 56, 78.
DIGEST.
481
INN OF COURT.
The iDDS of Chaocery are so far volaotary socie-
ties, that this Court possesses oo power to compel
them by roaodamas to admit an attorney to be ooe
of their members. Th§ King v. Barnard^ Inn, 62.
INQUISITION.
See Forcible Detainer, 1 . Highway, 2, 3, 4.
INSOLVENT.
See Assignment of Property. Evidence, 4.
A person, in order to obtain fresh credit, offered to
give a warrant of attorney for the amount, as well as
for an old debt, for which he had been discharged
under the Insolvent Act, and on his solicitation the
creditor was induced to take it and give the credit : —
Held, that the warrant of attorney was not good for
the amount of the old debt. Smith v. Alexander, 82.
INSPECTION OF DEEDS.— See Mandamus, 1.
INTERPLEADER.— See Practice, IV.
IRREGULARITY.— See Practice, V.
JUDGMENT.
1. A docket of the issue is not a docket of the
judgment within 4 & 5 W. & M. c. 20, so as to give
precedence to the judgment creditor over other subse-
quent charges on the land. Doe d. Barron v. Piir-
chas, 50.
2. It is the duty of the plaintiff's attorney to see
that the judgment is properly docketed. Id.
JUDGMENT AS IN CASE OF A NONSUIT.
See Practice, VI.
JUDGMENT NON OBSTANTE VEREDICTO.
See Arbitration, 7. Pleading, 29.
JUSTICES OF THE PEACE.
See Poor, 1. Sessions. Warrant op Justices.
1. Where justices under the 33 G. 3, c. 54, s. 15,
and the 49 G. 3, c. 125, s. 3, had heard the com*
plaint of a man claiming to be a member of a friendly
society, alleging that he bad been unlawfully ex-
pelled, and that arrears were due to him, and they at
first ordered him to be re-admitted, and then, on a
subsequent bearing, made an order for payment of
the arrears, and issued a warrant of distress against
two persons as officers of the society -.—Held, that an
action of trespass was maintainable by one of these
persons on whose goods the distress had been levied,
all the facts necessary to give the justices jurisdiction
not being distinctly round and set forth on the face of
the warrant. Day v. King, 178.
2. Justices authorised by an act of parliament to
proceed by warrant in execution, to enrorce payment
of rent to a company for gas supplied by that com-
pany, ought not to do so without a previous summons
to the party against whom the warrant is to be issued.
Painter v. The Liverpool Oil Ga$ Company, 233.
LANDLORD AND TENANT.
See Evidence, 3. Statutr op Frauds. Trover.
1. A lease contained a general covenant to repair,
and also a special coyentnt by which the landlord
was empowered to enter and view the premises^ and
to give notice of repairs, and if the repairs were not
msuie within a certain time, to enter and peiform
them, and charge the tenant with the expenses, and
distrain for them as for rent. The lease contained a
general covenant for re-entiy in case of the non-per-
formance of any preceding covenant as to rent, re-
pairs, &c. The landlord gave notice of repairs; they
were not made. He then gave notice, under the
special covenant, that if not made within a certain
time, he should enter and make them, and charge the
tenant with the expenses. The tenant did not repair,
and the landlord afterwards brought ejectment under
the general covenant of re-entry: — Held, that he
had, by the notice under the special covenant, waived
his right of re-entry under the general covenant as
upon a forfeituie for non-repair. Doe d. De R'utzen
v. Lewis, 162.
2. A tenant entered certain premises in May, but
was to pay rent as from the 2d February preceding
to the 2d February in the next year, after which he
was to hold them as tenant from year to year. In
October, 1833, he received a notice to quit '* at the
expiration of half a year from the delivery of this no-
tice, or at such other time or times as your present
year's holding of or in the said messuage, &c. shall
expire, after the expiration of half a year from the
delivery of this notice :" — Held, that the word *' pre-
sent" must have reference to the expiration of the year
current aftei the time stated in the notice, or might
be rejected altogether, and that the notice was a goiod
notice for February, 1835. Doe d. Williamt y.
Smith, 176.
LIEN.— See Costs, 17.
A person who is both town-clerk and solicitor to a
corporation, may have in the latter character a lien
on corporation papers. This Court will not issue a
mandamus to such a person to deliver up books and
writings said to belong to the corporation, if he claims
as solicitor to have a lien on them. The King v.
WiUiams, 275.
LIMITATION OF ACTION.
See Mortgage, 1.
1. Assumpsit, for unliquidated damages, is an ac-
tion within the saving clause, s. 7, of the Statute of
Limitations, 21 Jac. 1, c. 16. Piggott v. Ruth, 28.
2. An acknowledgment in this form, " I acknow-
ledge to owe Mr. James Morris the sum of 36/., which
I aeree to pay to him as soon as my circumstances
will permit me to do so," was held to be admissible
in evidence, without any stamp, to take a case out of
the Statute of Limitations. Morris v. Dixon, 57.
3. Where a part-payment is made by a paity who
owes a debt to another, and there is no proof of more
than one demand existing between the parties, such
part- payment, and the words accompanying it, may
be referred to this one debt ; and though the words
used do not expressly mention any debt, it shall be
sufficient to take it out of the Statute of Limitations.
Evans v. Davits, 15.
4. Where there has been a continued possession of
lands for twenty years, but not adverse, s. 15 of 3 &
4 Will. 4, c. 27f enables a party claimbg to bring an
action within five years after the passing of that
statute. Dot d. Bttrfcn ?• Thompmn, 461,
LUNATIC^See Pruonkb, 2.
ftUNDAMUS.
ScelNNorCounT. Li£». Orricm, 7. Pemidn,
1. Pbjctice, 43. ItAiE. Seuioki, a.
1. At tbebniine ofioappaal aguoit >n onler of
TcmaiBli tbi apptlunU, at tbe inBUBce of Ibe le-
tpoadt^, produoed an suigDnMat of the paupar u
■inuaDlica to A muter in the appelUnt paiiih, but
objeeud to ita bcinfc gircn in evideiMe tj the le-
ipgodeiiU, ai it wu not ■timpod. Tb« Couit uf
Qautor Stwioill retpilad the appeal, tbat the re-
ipondenfi night tpplf to the Coud of King'i Bench
tot n maudamma lo tb* reapoodenta to produce the as-
NgDBKDt to b« itUDped -.—Htld, that the inattunMiit
waa not a docnineni of n public Dawra, and that no
mutdunna would tie. Tht King v. Tht Ovtrtefri of
IVtitoiiii, 446.
3. CeilaiD burgcHes who posieased ihe i)uilifica(iaa
reqiured b; 6 & fi Will. 4, c. 76, a. 9, were objected
la *l the teviuoa of llie liiu before tbe major ami
alieaaoia, liecauK tba; had not paid ibe ahifliag »-
quired by 3 Will. 4. c. 45, i. 66, aod their oaioei
were Ibeteupoa eipiuiged -.^^litld, tbat ■ mwidiiDui
doei Dot lie for Itae loieilioa of ibe naioea. Tht
JfiNf V. Tht Mayor and Autaeri of Hylht, 4&5.
3. When impoiied gooda were taken poucuiOD of
b; cuatcMD'bOMe oificcra, and the owner claimed them
■pen payment of a imatl ad valarm daty, aa goods
ineckrd, hut the officerB, though Ibal duly had heea
paid into the treaaurT. refused to deliver Ibetn up.eicept
OB pnynentof the fall importation duly -.—HtU, that
tbis Couil would not grdut a miindamus lo cornpel
the commiisioneis of customs to deliver up Ihe goods,
bul left the psity to jiuisae a civil remedy if the goods
were wrongfully delaioed. Tht King v. The Commii-
•uHcri i>f CuMMi, 247.
4. Where 'a patty claiming a copyhold lenejnenl
cannot try his right without idmistioa, the Courl of
King's Bench will compel the lord to admil bim.
even although anulher parly has already been ad-
mitted. 77i< King V. The Iav.I of tht M.nu.' of Hii-
bam, 396.
5. When ao oDiee is full by a void electiou, and
Ibe light to appoiut to it cinaot be tried in any 01 her
way, tlie Court will gram a rnandamus lo try Iho
right. Tht King 1. Tht Miniitrr , l^c. of SUkt Damt-
ytt, 346.
6. Bul where a person was appointed teilon of a
parish by the minisler. in whom the right lo appoint
primd fiieii is, the churchwardens refused to call
a>eatrymeelingoftheparishioDen (who alH>c!aimed
Ibe appointmenl) U> elect one, and it appeared that
Iheie was anolher method of trying Ihe right ; Ihe
Court refused to grant a mandamus lo Ihe minister
and cbtmhwardena lo call lbs vestry meeting. !d.
7. Even allbough it was in the power of the person
■ppointed sewonlopreventtheolher method of trying
the right broog resorted to, by refraining from claim-
ii^ his fees, whereby Il« evidence of the right in Ihe
Jarishioners at large would in lime be lost by the
eatb of parties. Id.
B. The Court will grant a mandamus to compel
pariah officers to male a rate for relief of the pour,
where two onl of four of those officers refuse to concur
in any rale which does not enpressly state that cer-
tain iocImuiu ue witbiu a certain disliict Id Ibe
I parish. Tht King r.TluClnTchicurdtni rfEdltuUn,
429.
9. The rule for such a mandamus U absoluie in
I the fini instance. Id.
j 10. A mandarotis issoed without oppositioa to the
justicesofW., directing them lo enforce a convic lion.
A rule nisi having been obtained, calling on Ibem to
shew cause why they ahoald Dot pay the cosis of the
application for the mandamus, of the raaniiamus, and
□F the rule, the Court held, that Ibe circumstance of
their DOt having opposed the application was no
! round for iubjoc^M tbem lo costs, and diacbarged
le rule with cosU, The King y. The Jtatieit of Wttr-
uickthirt, 429.
II. 5tn61e, (hat the applicalion ahoald have been
I made against the iadntdml justices who acted in
' tb« matter. Id.
MANOR.
MORTGAGl:^— See Pooh, 9.
1. The possession of a mortgagor ia still, notwith-
standing ihe 3 & 4 Will. 4, c. 27, a possession not
idvetse to the mortgagee ; and therefore, where such
posiessiun had existed for more than twenty years, it
was held, that no acknowledgment in writing under
the Uth and 15th sections was required to take Ihe
ea*e out of the stalnte, but that the motlgagee might
recover trader the 15lh section notwilh standi u g snch
possession. Uat d. Jiinei v. IVitliam, 213.
2. A parly applying for ihe assistance of the Court,
under the 7 Geo. 2, c. 2(1, to compel a mortgagee lo
le-convey tlie moitgaged premises, must be ibe very
party entitled to redeem, and the defendant in the
ejectment, if such an action has been commenced.
An authorised agenl is aol wilhin the provisions of
the alatute. Dot A. Hunt v. Clifton, Dee d. Orthard
V, SlitUt). 286.
NEW TRIAL.
1. A defendant gave due notice lo Ibe atlomejr for
the plajntilf In produce a certain document. At ibe
liial Ibe attorney attended, aod iben for ihe first tin*
staled that the document was not in his posseuion,
whereupon liie defendant was unahle to prove fail
case, and the pUinliS' obtained a veidicl. Upon a
motion for a new trial llie plainliiT's adidavita stated
facts, which, if proved, were an answer lo the defead-
ant's case, even if the document bad been produced.
The defeodAnt's alfidavil* sUIed he had a good de-
fence on Ibe merits. The Conrt granted a new
trial, Dot d. Poole v. Eniuglon, 448.
2. Ibe Court will not give a party the advantage
' ' his perlicular c
him, especially if be n _
an effect by adopting • different mode of procseding.
StrJran1 1. Cluifes. 373.
3. No new trial will be granted on the ground
that the verdici waa against evidence, where the sub-
ject-maller of the aelioa appears on Ihe evidence to
be less than 201., evoD where ibe verdict baa beta
Ibuad for tbe defeDdani. Htkt* v, Omts, 30,
DIGEST.
483
NOTICE OF ACTION.— S«e Puudimo, 23,24.
OFFICER. — See Inclo6ork, U MANoiMus^d, 6, 7.
Poor, 7. Fbicticc, 42.
1 . The right to dmuuMl a poll it by law iocideDtal
to the election of a parish oflieer by show of hands,
where there is no special custom to exclude it. Camp-
bell V. Maund (in Error), 457.
2. A demand of a poll, not made until after the
show of hands is declared to be in favour of one can-
didate, is good. Id.
3. If a demand of a poll to be taken in a particu-
lar way is made, and no objection b made to the
taking of the poll at all, on the ground that the form
of demand is irregular, and a poll is taken, it is a
waiver of any irregularity in the form of the demand.
Id,
4. In the parish of P., both before and after the
passing of the 58 G. 3, c. 69, the mode of electing
churchwardens had been bv show of bands, no poll
ever having been demanded; but it did not appear
that there was any special custom to exclude a poll.
— Heldy that this parish was not exempted by the Btb
section from the operation of that act, giving a plurality
of votes according to property. Id,
5. A subsequent local act having enacted that the
election of churchwardens should oe conducted " in
such manner as hath been usual in the same parish :"
— Held, that a poll still must be taken by a plurality
of votes, according to the 53 G. 3, c. 69, the mere
fact of the votes never having been so taken being im-
material. Id,
6. Where an act of parliament created one parish
out of a portion of anotner, and directed that the elec-
tion of officers in the new parish should follow the
mode adopted in the old parish : — Ifeld^ that this di-
rection only applied to the mode of election tlien in
practice in the old parish, and that if that mode was
lODg afterwards declared to be illegal, and another
substituted for it, the new parish was not bound to
adopt the sobsdtnted mode. The King v. St, Jama*t,
Weundnttevt 253.
7. Hie Court will not, upon any general principle
of law, compel parish officers to allow a rated inhabit-
ant inspection of certain books of accounts, nor to
permit nim to take copies of the same where the acts
under which those books are kept, do not distinctly
give him the right to have such inspection and to
take such copies. Tkt King v. St, Marytebone, 261.
OVERSEERS.— See Officer.
1. The overseers and churchwardens of a parisli
have not such a special property in the hiahway
books, kept by the parish surveyor, under the 13
Geo. 3, c. 78, s. 48, and the 56 Geo. 3,c. 69, s. 6,
as to enable them to maintain trover against a sur-
veyor who has gone out of office, but who refuses to
deliver np the books. They must proceed against
him under the provisions of these statutes. Harriun
V. Hound, 18.
2. A vote of a vestry authorising the payment to
the overseers of costs incurred by them in defending
their accounts, is bad, and an order of sessions allow-
ing subsequent accounts^ in which such payment
fosmed one of tht itena, wat quaah^l. Thi King v.
Johnson, 201.
PALACE COURT.^See Paactice, 56.
PARTICULARS OF DEMAND.
See Practice, 56, 66.
PARTITION.— See Estate.
PARTNER.
See AsaiGNMENT or Property, 5. Bill op Ex-
CUAVQE, 1, 2. EVIDSMCE, 2.
PAYMENT.
See Evidence, 12, 13, 14. Limitation of Ac-
tion, 3.
PENSION.
1. The Lords of the Treasury granted, under 3
Geo. 4, c. 113, a pension for lile to a person whose
office had been abolished. They afterwards, thinking
the^ had no power to grant such a pension, revoked
their warrant. The amount once appeared in the
Crliamentary estimates, because the item coold not
withdrawn in time. It was afterwards withdrawn,
and no money was ever received from parliament on
account of the pension, the sum which bad been once
in the estimates having been applied to the ways and
means : — Held, that no mandamus could go to the
Lords of the Treasury to enforce the payment of the
pension. The King v. 7^ Lord$ dornminieneri of
the Treasury, 67.
2. The Lords of the Treasury had no power to
grant such a pension. Id,
PEREMPTORY UNDERTAKING.
See Practice, 35, 74, 75.
PERJURY.
See CniMiiTAL Information. Practice, 38.
PLEADING.
See Easement, ?. Evidence, 10. Practice, 82.
SciuE Facias. Sheriff, 5, 6.
I. General or Special Plea.
1. Ill an action of libel, plea, the general issue r-—
Held, that the dcleodant was not precluded by the
rule of H. T. 4 Will. 4» r. 4, from setting up as a dc«
fence at the liiul that the matter cumplained of was
the subject of a privileged communication. Liltie v.
Price, 381.
f . In tusumpsU against carriers for the foss of a
parcel, the defence that the value was above lOL, not
declared at the time of delivery, most be specially
pleaded. Syms v. Chaplin, 411.
3. Debt on an attorney's bill for business done ha
conducting a suit at law. Pleas, fmn^ifiN tfide6it«t«<,
and set-ofF, and money was paid into Court : — Held,
that the defendant was not precluded by the role of
H. T. 4 Will. 4, r. 3, from giving iu evidence a con-
tract that the business should be done for ** the money
out of pocktt." Jones v. Reade, 38tf.
4. Ill an action lo recover the amount of an apothe-
cary's bill, the proof required by the statute 55
Geo. 3, c. 194, s. 21, that the plaintiff is an apothe-
cary, is a condition precedent to his right to recover.
He must therefore give tluit proof, alibou|;li the
defendant has not put on the record any special plen
founded on that statatc. Shearwood v. Hay, 249«
484
DIGEST.
5. Nor does it make any difference in this respect
tbat the defendant has pleaded a tender as to part of
the plaintiff's demand, (hough such plea is expressly
pleaded to a count of the declaration where the work
is said to have been done and the medicines furnished
by the plaintiff as an apothecary. Willis v. Lang-
ridge, 250.
6. In trespass against overseers for taking goods
as a distress for a poor's rate ; a defence that the
goods were not the property of the plaintiff may be
given in evidence under the general issue, notwith-
standing the new rules, Maine v. Davey, SO.
7. So it seems might any matter of defence. Id,
8. The 3 & 4 Will. 4, c. 52, s. 108, requires that
previously to the unloading of goods carried coast-
wise, a written notice of the ship's arrival, signed by
the master, shall be given to the collector or con-
troller of customs, by the master, owner, wharfinger,
of agent of the ship, and (hat certain documents
bhould be obtained. In an action of astumpsit for
demurrage: — Held, that non-compliance by the
plaintiff with the above provisions, could not be given
in evidence under the general issue. Alcock v. Toy-
lcT,5B,
9. A statutory objection of this description should
be specially pleaded. Id,
10. Quare, whether the new rules extend to penal
actions, so as to prevent a defendant in such an hc-
tion from pleading not guilty, and quiere whether such
plea would bind the plaintiff in such action to prove
all the matters necessary to constitute the offence.
Faulkner v. Chevall, 183.
11. Assumpsit (or yrotk nnd labour and materials,
alleging in the usual form a promise to pay on re-
quest. Plea, that the work and labour had been
done and the materials furnished under an agreement
that the plaintiff should receive nothing if the work
should (urn out to be useless, and that it had done
so : — Held, that this plea was bad upon special de-
murrer, as amounting to the general issue. Hayselden
v. Staff, 204.
II. Other Matters.
12. In actions by executors, all who are named in
the will may join, though some only of (hero have
proved; and it makes no difference that issue is
raised on a plea of ne uuques executor, Scott v.
Briant, 54.
IS. Tlie omission from a plea of the actio non, and
prayer of judgment, is no ground of demurrer where
a plea goes to the commencement of the action, whe-
ther it is pleaded to a part or the whole of the decla-
ration. Benmore v. Neck, 178.
14. Where to an action of assault nnd battery, the
defendant pleads a conviction and certificate under
the 9 Geo. 4, c. 31, s. *27, 28, he must state the
names of the justices before whom the proceedings
under that statute occurred. Id,
15. A plea of tender merely admits the defendant's
liability on the contract to the amount tendered.
Willis V. Langridge, 250.
16. In assumpsit for goods sold and delivered, the
plaintiff pleaded, first, non assumpsit as to all except
a sum of 4/. 9s, 5d, ; secondly, a tender as to 3i, 9s,
5d., parcel, &c. ; thirdly, payment of 1/. In neither
plea was it stated whether the tender was made be-
fore or after the payment. The second plea was
specially demurred to i—Held, that it was sufficient.
Jones V. Oufen, 191.
17. A replication to a plea of coverture, that the
plaintiff's husband had been abroad for seven years,
and was not known by the plaintiff to be living within
that time, is bad. Lake ▼. Ruffle, 203.
18. To a declaration in assumpsit on a promissory
note, the defendant pleaded that the note was given
upon an agreement between the plaintiff and himself,
in consideration of certain money and goods then
agreed by the plaintiff to be thereafter lent and ad-
vanced and supplied to the defendant, and (hut (he
plaintiff did not perform the said agreement. The
plaintiff replied de injurid : — Held, a goo<l replica-
tion. Watson V. Wiikes, 187.
19. In assumpsit, the declaration stated the terms
of a certain agreement of demise between A. and the
defendants, that A. afterwards died, and plaintiff
entered into possession ; that defendants, in consider-
ation that plaintiff would permit them to hold and
enjoy the premises, agreed to perform the conditions
then agreed upon, and also the conditions according
to the tenor and effect of the first agreement. Alle-
gation, that defendants did hold, &c. Breach, non-
performance of the conditions. Plea, non-assumpsit :
— Held, that upon this record the plaintiff was bound
to shew what the conditi(ms on the first agreement
were, and not being able to do so was rightly non-
suited. Wallis V. Broadbent, 40.
20. Declaration in replevin in the common form.
The avowry justified the taking of the goods for rent;
the plea in bar stated, that after the distress, and
before the impounding, a tender of the rent was made
and refused, and the goods were detained, as in the
declaration stated : — Held, that this was no de-
parture, the detention after tender made being a
new taking. Evans v. Elliott, 231.
21. To an action of debt upon the ^2 Geo. 2, c. 46,
s. 14, against a deputy clerk of the peace for a
borough, for acting as an attorney at the borough
sessions, the defendant pleaded that he was not at
an^ of the said times, &c. deputy clerk of the peace
&c., nor did he comnrit any of the said supposed
offences, &c. : — Held, bad on s]>ecial demurrer.
Faulkner v. Chevell, 183.
22. In case against the clerk of certain commission-
ers under a local act, the declaration stated, that the
plaintiff advanced to the commissioners a sum of mo-
ney for the purchase of an annuity, and that five of
the commissioners, by a grant made according to the
form of the statute, did by virtue of the act grant an
annuity out of the rates granted and to arise by virtue
of the act, and that afterwards a quarterly payment of
the annuity became due, and that the commissioners
had in their hands, out of the rales granted by the
act, more than sufficient to pay it, and tbat it became
their duty to pay it, but that they did not: — Held,
1st, that a plea, traversing the commissioners* duty to
pay the quarterly payment, was bad on special de-
murrer : — 2d, that it was not cause of general demur-
rer to the declaration that there was no averment that
the money was advanced to the commissioners for the
purposes of the act, or that there was no averment that
the commissioners had sufficient to pay all demands
on the rates. Cane v. Chapman, 355.
23. The local act enacted, that the commissioners
might sue and be sued io the name of their clerk, for
^
or coDcaming id; thing nhich iliall be done by virtue
or in puniuDce oF the act ; and also bjr Boottaer tec-
lion eniclad, (bal no action sliould be brought for any
dayi" notice had ixen given lo ibe clerk -.—llftd, that
an action for the uoQ-payineDt of the annuity wis con-
ceraiog a tbinE done in punuance of the act, and wi>
properly biou^t ogainit the cleik, a* the leclion au-
thorising action! to be brought against the clerk wai
nol lo be conitrued ai limil^ to acts oF mol-feasance
or mii-feaMDce only. Cam t. Clxipinan, 333.
34. Smiblr, it i> not Dcceiuiy that fourteen dayi'
notice ihould be ginn of luch an action. Per Colt-
Tidgt.J. Id.
95. Caie Cor neglect of duly i> the proper form of
either against the five commiuioneis who granted Ihe
■nnnity. or the whole body, they not being personally
liable, and ihe credit having been given to the rates.
26. Auumpiit against the defendant as acceptor
of certain bills of cichangc. Plea, lliat after tlie bills
were accepted and bccanie due, the dvfeiidHiit, rrsi-
denl in and subject to the luwi of Scoilnnd, in
coDtidcralion that hii creditors ihould forbear to sue,
by liii deed, made according to Ihe law of Scotland,
asiigned his personal properly wiltain Scotland to
J. D., for the use of Ids crediton ; that notice of Ibis
deed was given (o Ihe plaintiff; thai the plaintiff
■ppoinled by ■ writing, Tilid according lo llje law of
" • ■ "^ " f to concur in the
.1 H. K. did concur
r credilori accepted the
Jbj.wri
, H. R.
of Iheii
1 tbat
the aiiignment funds
iuffident 10 pay all Ihe credilon ; lliat all the pro-
ceediogs were in conformity with the law of Scol'
land i by reason of wliicli premises, and the eRecl of
>, Ihe I
eFendin
that Ihe defend-
ant has not became discha/ged meda tiformS -.—lleld.
first, IliAl by this replication the law of Scotland was
put in iasne ; secondly, that the plea did not disclose
a defence it English law. Woedhan y, Edaardi,
4*3.
IT. A pica to on indictment against a parish for
non-repair of a road, innit point out distinctly the
pcnoni bound to repair. Tht King r. Tkt Inhobil-
anti of Eailinglon, S7S.
18. A plea that n road is in a particular lownihip,
and that the tnliabiiants of the township have been
used, &c. to repair all roads williin it vrliich olher-
wisT would be repairable by tlie parish at large, and
IliBt by reason of ilic pteinises Ihe iuliabitants of Ihe
lownthip ought to repair llie road, is bad for not
DTerHngtbaC the road, but for llie alleged custom,
would be repairable by llie parish. Id,
19. A verdict liaviiig been given for the defmd-
anls on such a plea, judgment mm obtonte vrredicia
conint be given for the Crown, ai it does not appear
that tlie parish ii liable to repair. Id,
30. In trcspasi ouorc i-Iauitin Jngit, two pleas,
one of which jiiatinea ihe trespass under a custoni
for an unqualified right of entry, Ibe other under a
custoin for a right or entry subject to compensation,
cmnol be pleadeil together. Ballard t. Smith,
4tB.
POOR.— See Susions.
1. Where Iwojntlicciof acoonly have con cnrrent
jniisdiclion with Ihe jnsiicrs of u city, which is not a
county of a city, they may, Ibuugli they have not
qualified a) justices For suth city, sign an allowance
of the indentures of a pauper bound apprentice by
Ihe overseers ofa parish within the cily to a persun
residing in a town within the countv. And such
allowance by them alone will be good under the 56
Ceo, 3, c. 139. The King ». Tlie Ii^abiUnli rf
WilHty, IbO.
8. The party relying upon the indenture at tlic
sessions need not prove nolice to the overseers of the
pariah into which Ibe paopcr was bound apprentice.
Die waul of notice should have been proved at the
sesiions by the other parly. The allowance by two
justices raised the presumption, that all tint the sla-
' jne before such allowance was
nade had
3. Wh*
perly d.
Id.
of
master, ihe
re must he, for Ihe purpose of the appren-
B seltlemeni under such lecond Krviee,
a clear as
enl by the first master to the patliculat
h the leeond mailer. 75* King v. Tht
JnABbiU.HI
Bj- MaiJllon., 198.
4. An a
sent given since ibe S6 Geo. 3, c. 139,
where the
isignnienl was without the conient of ilie
justices, is
not good by relation back. Id.
S. A ma
n who was a carpenter and occnpier of
applied lo by another lo permit him ta
succeed a ihen apprentice he bad. The mailer said.
he would 1
l.e no more apprentices unless they would
work on the land as well aa at the trade, and that he
would tak
him lo do work as a servant. It was
agreed tha
the pauper ihould live with the master
for three y
BIS and leani the buiiiieis of a carpenler.
and do any
oiher »ork he required him lo do. Tlio
lo pay weekly "ages, and for ovei-woik .
-Ilild. tl
at this was a defective contract of appren-
id not n contract of hiring and service.
Thi King
. Thi lahabilonts of Igkthttm, 7.
6. L. agreed on behalf of his sou, that he should
serve M. from the dale of Ihe agreement till a time
mentioned, U. paying, at the expiration of the said
term, SL to tlie son. L. lo find his son clothes,
wasliing, and all other necessatiei, and M. meat,
drink, and lodging : — Hiti, that Ibis was a contmct
of hiring and serricc. Tht King *. Tht luhabitmlt
£/'Bil/ingJiay,4l9.
T. The rector of a paiisli sent for H. S. on a Sun-
day. and requested him to perform the duty of clerk
fur that day. He did so, and Ihe rector, on coming
out of Ihe desk, said to liim, " I shall appoint you
my regular clerk and leiluu, and lo follow mc in
inaniagea and funerals :"—HeJ(f, that H. S. was
thereby regularly appointed parish clerk, and llinl
by serving the office he ulned ■ teltlement. Thi
King », Th* Jahaiitonft ofBuhbbig, 41B.
8. Where a building contains under one roof
three floors, each entered by u seperute outer door,
though one of the rooms on the middle floor cannot
be cnlered hut by going along or across a pasuige
belonging lo the upper floor, the occupier of such
middle float gains a settlement by rentine, under G
Ceo. 4, c. M. Tht King v. Grait an<< Liltlf Unearth
md NvrlA Siddicfc, 100.
486
DIGEST.
9. A testator purchased land in the parish of A.
and mortgaged it, and by will derised it to trustees
in trust for tale, and to apply the proceeds in pay-
ment of bis debts, and the residue to his wife for her
own use and benefit : — Held, that under this de?ise
the wife had an equitable estate in the land itself,
such as to confer a tight to a settlement : that actual
residence on the land itself was not necessarv, resi-
dence in the same parish being sufficient : tnat the
occupation of the land by the trustees under the will
was not an adverse possession by them affainsl her,
and that evidence as to the value of the land, with
the view of proving that there would be no residue
after payment of the debts, was immaterial, the ques-
tion being what estate the wife took under the will,
and not what was the value of that estate. The
King V. The Inhabitantt of AsUckby, 217.
10. A pauper met with an accident in the parish
in which he was residing, but in which he was not
fettled : — Held, that he was a person coming to settle
in that parish, within the 13 & 14 Car. t, and re-
moveable, and that the accident wns an infirmity,
within the 35 Geo. 3, c. 101, which gave power to
justices to make an order of suspension, and charge
the parisli in which he was settled with the expenses.
The King v. The Inhabitants of Oldland, 4.
11. A pauper, under euch circumstances, could
not be considered as casual poor. Id,
IS. If the overseers of the poor of one parish oc-
cupy premises in another parish, they are liable to
be rated in the second pnrish for Huch premises,
though they are occupied solely for the benefit of the
poor. The Oovemors of the roor of Bristol v. Wait,
70.
13. A notice of appeal against an order for the
removal of three children, the issue of Uie wife of a
pauper by a former marriage, simply stated the names
of the children, the fact that they were under thir-
teen, and named the parish in which they were set-
tled ; such notice was held sufficient under sect 81
of the 4 & 6 Will. 4, c. 76. The King v. The Jus-
tices of Cornwall , 137.
14. The examination of a pauper stated a settlement
by hiring and service. The notice of the grounds of
appeal set out an exception in the hiring for two
days' holiday at Spalding club feast -. — Held, that the
appellants could not, under such notice, give evidence
of an exception for one day's holiday at Ilolbeach
fair. The King v. The Inhabitants of Holbeach, 414.
15. SewMe, that the notice would have been suffi-
cient, although it had contained no mention of the
time or place when the holidays were to have been
enjoyed. Id.
16. A pauper (whose settlement was derivative)
stated in his examination before the inagistratea who
made the order, that his father belonged to the parish
of C, OS he had heard him say, and also that he had
heard him say that he was a certificated man from
C.: — Held, that the respondent parish might give
evidence of a ^tllement gained by the pauper's
father in C. by apprenticeship. The King v. The
Inhabitants of Kelvedon, 415.
17. Under 4 & 5 Will. 4, c. 76, the respondent
parish is not liound to communicate ony information
relative to tlie settlement intended to be relied on,
other than that contained in the examination. Id.
PRACTICE.
See Amendment. Attorney. CERTioitAiir. Costs,
7, 15. Criminal Information. Judgment.
Mandamus, 9. New Trial. Pleading, 29, 30.
Rules op Court. Sessions, 10, 11. Sheriff, 1.
I. Affidavit.
I. An affidavit of debt stating the defendant is in-
debted to the plaintiff " in the sura of 500/. for
principal monies due on a bill of exchange," but not
stating the amount for which the bill was drawn, is
bad. FoweU v. Petre, 379.
S. In an affidavit of debt, by the indorsee against
the maker of a promissory note, it is not necessary to
state that the defendant is indebted to the plaintiff
" as indorsee." James v. TretMinioii, 33f .
3. It is also nnneccisary to state the default of the
indorsers. Id»
4. An affidavit of debt for the agistment of cattle,
roust state it to have been " at the request of the
defendant." Smith v. Heap, 89.
5. An affidavit by en attorney's clerk, stating tbe
residence of his master, but not his own, is sufficient.
Strike v. Blanchard, St9.
6. It cannot be presamed that an affidavit made
by a baronet, who is party in a cause in which the
affidavit is intituled, is made by tlie person who is
the party merely from the identity of the name and
addition. Doe d. Taylor, Bart. v. Meeh, 135.
II. Bail.
7. The affidavitof justification of bail, given under
the rule of T. T. 1 W. 4, roust have the addition and
residence of the depiment, as required by the rule of
H. T. « W. 4. Bnwa'j bail, «91.
8. Where the affidavit of justification of bail did
not coroply witli the rule of T. T. 1 W. 4, from not
stating the value of the different descriptions of the
bail's property, and the bail were allowed: — Held^
that the plaintiff was not entitled to the costs of op-
position. RotU's bail, ?9l.
9. Where a defendant is a prisoner, a two days'
notice of putting in and justifying bail at the same
time, need not state that the defendant is a prisoner.
Pierce's bail, J90.
10. Notice of bail given under the second rule of
T. T. 1 W. 4, must not only state the residence of
the bail for the last six months, but also aver such
was the residence during that time. HoUing*s bail,
990.
II. Notice of bail, stating tlic residences for tbe
last six months to be as follows, and then describing
one of the bail, as of one place, and now residing at
another, is sufficiently positive as to where that one
has resided. Park's bail, 134.
13. Notice of bail, describing one of tbe bail by
the initial only of his second christian name, heltl
bad. White's bail, tS4.
13. A defendant cannot justify bail in vacation,
under 11 G. 4 and 1 W. 4, c. 70, s. IS, not having
been noticed to do so by the plaintiff, under the rule
H, T . 2 W. 4, 1. 17. Barratt v. Jama, 128.
DIGEST.
487
li. It Is no objection to bDil justifying that an
alteration in the name of one of Ihem appears to
hate been made in the bail-piece, the iniliuls of the
commissioner who took the bail being in the margin.
HayiPood's hail, 189.
15. If only one bail appears, he cannot justify.
White*$ bail, 134.
III. Distringoi,
16. An hour must be appointed as well as the day,
when the second and third calls are to be made pre-
vious to moving for a distringas. Atkinson v. Clean,
301,
17. Distringas for the purpose of proceeding to
outlawry granted, although three calls had not been
made at the defendant's place of abode. Harding v.
Mannen, 80.
IV. Inttrpleader,
18. Tlie Court refused to give a slieriff relief under
the Interpleader Act, where a fi, fa, was delivered
to him two months before notice of a fiat having
issued against the defendant, and no reason was as-
signed for the delay in the execution. Lashmar t.
Claringhold, 87.
19. Goods having been seised and sold under an
execution, and the proceeds paid over to the execu-
tion creditor, the sherifT cannot apply to the Court
for relief under the Interpleader Act, though he had
no notice of the claim until after the sale. Inland v.
Busheli, 118.
iO. In nn action in case for an obstruction in col-
lecting tolls of a mine, with a count in trover for ihe
ore, against the adventurers who claimed an interest
in (he ore, but disclaimed as to the tolla: — Held,
that the Court could not entertain an application by
the defendonts under the Interpleader Act. Law-
rence V. Mathews, 123.
21. Where an issue is directed under the Inter-
pleader Act, and the claimant refuses to proceed to
trial, another claimant cannot be substituted as party
to the issue, without calling on the first claimant to
shew cause against it. Lydall v. Biddle, 302.
22. An issue having been directed under the 6th
section of the Interpleader Act by a judge at cham-
bers, and no objection made to the want of jurisdic-
tion of the judge : — Held, that it must be considered
as an issue under the act, made by consent of the
parties, and that therefore it was necessary to apply
to the Court for a rule for the costs of trinl. Mat-
thews v. Sims, 298.
V. Irregularity.
^5» An application to discharge a defendant for a
defect in the affidavit to hold to bail, was made before
a JL'dge at chambers (en days after tiie detainer, and
afterwards to the Court nine days later: —Held, that
the application to the Court was made too late.
Fmoell V. Petr§, 379.
24. A mistake in the copy served of a writ of
summons, in the year of (he king's reign in the teste,
is merely an irregularity. Edwards v. Collins, 298.
25. An application by the defendnnt to set aside
a declaration, on the ground uf its not being dated on
the day on which it was delivered, not nindc until
the dcH^ndant has notice of the plaintiff having taken
m subsequent step, is too late. Newnham v. Hanny,
303.
26. It is no ezciite for not making a motion to set
aside a declaration for irregularity within four days,
that the delay was owing to the defendant's attorney
having been changed. Golding v. Scarborough, 94.
27. The plaintiff gave notice that he should pro-
ceed to trial notwithstanding an agreement to refer
tiie cause, and accordingly proceeded to trial, and
obtained a verdict : — Held, that the defendant was
not bound to move to set aside the trial, until he Iwd
notice of the plointiff having taken a subsequent step
in the cause. Williams v. Owynne, 312.
28. An application to set aside an interlocutory
judgment for irregularity, not made until after a rule
to compute was obtained, is too late. Grant v.
Flower, 326.
29. A plaintiff having offered to abandon an irre-
gular judgment he hud signed, but not having actually
struck it out, the defendant should not apply to the
Court to set it aside. Robinson v. Stoddart, 314.
30. If n plaintiff omits to charge a prisoner in exe-
cution within the proper time, it is more than a mere
irregularity, and therefore application to discharge
him may be made at any time afterwards. Colbron
V. Hall, 316.
VI. Judgment as in case of Nonsuit,
31. A cause having been once taken down for
trial, after which a new trial was granted, and a fresh
notice of trial given, the defendant cannot have judg-
ment as in case of nonsuit. Hawley v. SherUy, 331.
32. Where a cause is tried and verdict found for
the plaintiff, who afterwards consents to a new trial,
but neglects to try the cause, the defendant cannot
have judgment as in case of nonsuit. Brotigh v.
Scarby, 139.
33. Issue was joined in a country cause in Easter
vacation and no notice of trial was given for the next
assises : — Held, that the defendant might move for
judgment as in case of nonsuit in Michaelmas Term.
Robinson v. Taylor, 304.
34. The Court will not discharge a rule for judg-
ment as in case of nonsuit, where the sum sought to
be recovered is small, because the defendant will not
consent to a slet processus. Milstead v. Nursey, 293.
35. After a peremptory undertaking to try at a
particular time if I he cause is made a remanet, on
account of tiie sudden illness of a judge, and the
plaintiff does not apply for the enlargement of his
peremptory undertaking, (he defendant is entitled
to judgment as in case of nonsuit. H^ard v. Tur-
ner, 90.
36. The defendant having irregularly signed judg->
ment of non-pros, by which the plaintiff was pre-
vented proceeding to trial according to his notice,
the defendant cannot have judgment as in case of
nonsuit for the default. Howell v. Jacobs, 331.
VII. Rules.
37. Where an award directs that three defendants
should each pay one third of certain costs, it is neces-
sary to have separate rules for attachments for non-
payment. Doe d. Hodgson v. Summerjield, 291.
38. A rule for a new trial, on the ground of sur-
prise on the plahitiff, was made absolute on payment
of costs witliin a certain time; if not paid, then the
rule was to be discharged with. costs. The plaintiff
488
DIGEST.
did not pay the costs within the time, bat preferred
an indictment for perjury committed by the defend-
ant in his affidavit, in opposition to tiie rule for a new
trial : — Held, that proceedings for the enforcement of
the costs of Uie rule could not be stayed until after
ihe trial of the indictment. Taylor ▼. Slingo, 327.
39. It cannot be made part of a rule for setting
aside a warrant of attorney to secure an annuity,
that proceedings against the sheriff for a false return
to an execution on the judgment on the warrant of
attorney should be stayed. Ca$iel ▼. Lord Glengall,
313.
40. A rule cannot be granted in the alternative
for the plaintiff to find security for costs within a
certain time, and if not for the defendant to sign
judgment as in case of nonsuit. Kelly v. Brown,
315.
41 . The Court will not grant a rule in the alter-
native, calling on an attorney to shew cause why he
should not deliver up certain papers before a certain
day, and if not, why an attachment should not issue.
Roicoe ▼. Hardman, 118.
4t. It seems, that in a case where u parish is con-
cernedf if a rule is obtained while certain persons are
in office, but is not discussed till their time of office
has passed, and other persons have been elected and
sworn in, this Court will make the new officers par-
ties to the rule, to enable them to shew cause against
it. The King v. St, James, Westminster, 253.
43. On moving for a rule nisi for a mandamus to
the steward of a manor, to inrol a deed under the
stat3&4W. 4, c. 74, s. 53,— Semble, that it is
not necessary to attach a copy of the deed to the
affidavit on which the rule is moved. 7^ King v.
Lunn, 314.
VII T. Service of Rules, ^c.
44. Where a defendant refused to take the copy
of an award, rule, and allocatur, which were tendered
him, the Court granted a rule nisi for an attachment.
EllU v. Giles, 329.
45. Service of a rule to compute on a servant at
the house of the defendant, who had left his huuse
a month previously, is sufficient. Thomas v. Lord
lianelagh, 536.
46. Service of a rule to compute, at the last
place where the defendant was known to have lodged,
but which he had left, and by sticking it up in tUe
King's Bench office, is sufficient. Black v. Clouji,
297.
47. Service of a rule to compute on the landlady
of the house uhere the defendant lodges, is not suffi-
cient. Salisbury v. Sweetheart, 336.
48. Service of a rule to compute on ** a workman at
the house of the defendant," is not sufficient. Hitch-
cock V. Smith, 336.
49. Notice of an application under the Small
Debtors' Act, left with a servant at a lodging house,
is not sufficient. Biddulph v. Gray, 335.
50. An objection to such a notice is not waived
by appearing to shew cause against the rule. Id*
IX. Miscellaneous,
5J. It is necessary that some residence of the de-
fendant should be stated in a writ of capias. Mar'
getson V. Tugghe, 85.
52. A defendant who has been improperly arrested
on a capias and discharged* but without the terms of
entering a common appearance, cannot treat the
capias as if he had been served with a writ of snro-
nious, and therefore cannot enter an appearance, and
demand a declaration. Wickens v. Parker, 137.
53. An agreement to refer a cause to arbitration,
may operate as a stay of proceedings, altliough it is
not part of the agreement that it should so operate.
Williami v. Gwynne, 312.
54. If a plaintiff has lost atrial at the first sittings
in a term by bail not having been put in in dae time,
but might have proceeded to trial at the last sittings,
it is not such a loss of a trial at will entitle him to
have an attachment against the sheriff stand as a se-
curity under the rule H. T. 2 W. 4, V. The King
V. The Sheriff of Shropshire, 319.
55. The Court will not discharge a defendant out
of custody, though in an ill-state of health, and
though it appears by the plaintiff's particulars of
demand that all the cause' of action is barred by the
Statute of Limitations. Merceron v. Mereeron, 380.
56. If a defendant has been arrested by process
out of the Palace Court, and the cause has been re-
moved into the King's Bench, the bail below cannot
render the defendant to the county gaol, under the
sUtute 1 1 G. 4 and 1 W. 4. c. 70, s. 21. Scaitk v.
Brown, 322.
57. Such an irregular render is not waived by the
plaintiff declaring de bene eue against the defendant
as in the custody of the marshal. Id,
58. The Court, however, set aside a rule for a
procedendo, on the application of the bail, on the
payment of costs. Id,
59. Where imparlances are abolished, notice to
plead is still necessary, before the plaintiff can sign
judgment for want of a plea. Fenton v. Anstice, 125.
60. The defendant may deliver his plea at the
same time that he serves a rule to change the venue,
though the plea is one which will prevent the plain-
tiff from bringing back the venue on an undertaking
to give material evidence in the original county.
Phillips v. Chapman, 301.
61. If a defendant deliver a set of pleas which are
bad for want of counsel's signature, whereupon the
plaintiff signs judgment before the time for pleading
expires, that judgment is irregular. Smith t. Rath'
bone, 330.
62. After the defendant has had time to plead on
the terms of pleading issuably, he is not precluded
from demurring specially to the replication. Barker
yr,Gleadow, 113.
63. The plaintiff having given notice of trial, the
defendant cannot sign judgment of non-pros for not
entering the issue. Howell v. Jacobs, 331.
64. A plaintiff having given notice of trial for an
earlier sittings than he was obliged to do, did not
countermand it, and did not proceed to trial, bnt gave
a fresh notice for the subsequent sittings: — Held,
that the second notice, and a trial under it, were re-
gular. Fell V. Tyne, 299.
65. A plaintiff having given notice of trial for an
earlier sittings than he was obliged to do, did not go
to trial or countermand his notice, bot gave a fresli
DIGEST.
49B
notice for the sittings when he was bound to go to
trial : — StmbU, that the defendant is not entitled to
judgment as in case of nonsait. Ranger ▼. Bligh,
299.
66. If a particular of set-off which is voluntarily
delivered is intituled in the wrong Court, the defend-
ant is not thereby precluded from giving evidence
on his plea. Lews v. Hilton, 314.
67. Where a judge tells a jury that if a certain
fact is found one way the verdict must bs for the
piaintiflT, but if the other, for the defendant, and such
fact is found in the manner first supposed, the ver-
diet roust be entered for the plaintiff, though some of
the jury should dissent at the time from such a con«
structioo of the finding, and the Court will not after-
wards allow such entry of the verdict to be disturbed.
Doe d. Lewis v. Baiter, 264.
68. This Court will not talce notice of a short-hand
writer's notes of a judge's summing up, though veri-
fied by affidavit ; it will only refer to the notes of the
judge himself. Serjeant v. Chajey, 273.
69. A judgment signed but not completed by
taking in the riill until some time afterwaids, is to be
reckoned as a judgment of tlie time when it was
signed. Colbron v. Hall, 316.
70. The rule of H. T. 4 Will. 4, s. 3. prevents a
judgment signed in vacation being considered as a
jadgmeut of the previous term, so that that term can-
not reclcun as one of the terms within which a plain-
tiff must charge a prisoner in execution, by the rule
H. T. 2 W. 4, I. 85. Id.
71. An interlocutory judgment signed in debt on a
promissory note, is not irregular. Mackenzie v. Gav-
jford, 330.
72. Sixty actions having been brought upon a po-
licy of insurance, a consolidation rule was entered
into, by which the plaintiff and defendants agreed to
be bound by the verdict in one of them. The ver-
dict in that action was found for the plaintiff, but a
role nisi was obtained by the defendant for a new
trial. The plaintiff then, on the ground that by reason
of the arrear of business in the Court the rule for a
new trial could not come on for a long period, and
that during that time the plaintiff lost the advantage
of the interest, and incurred great risk as to the prin-
cipal, obtained a rule nisi for the defendants to pay
the whole amount insured into Court, or invest it as
the Court should direct The Court, however, dis-
charged the rule. Ohrly v. Dunbar, 434.
73. A defendant having neglected to deliver the
demurrer books, according to the rule of Court, the
Court granted a rule nisi for judgment. Somen v.
MilUr, 117.
74. A peremptory undertaking having been seve-
ral times enlarged, can only be again enlarged for
the same cause on payment of costs. Baron de
Reuttgn V. Jo/in, 331.
75. The Court will not enlarge a peremptory un-
dertaking, un the ground that a witness is fearful his
evidence might prejudice his interest in a matter
pending before the House of Lords. Mutton v.
Tabard, 138.
76. A rule to compute may be made absolute*
although the judgment has been improperly signed.
Deelejf v. Burton, 138.
VOt. II.
77. A samroons before a judge at chambers, re-
turnable at a time when it is well known no judge
sits at chambers, cannot be treated as a nullity. Bylee
V. Walker, 302.
78. Where the damages laid in the declaration are
exactly 20/. it is not necessary to enter into the re-
cognizances required by 19 Geo. 3, c. 70, s. 6, and
7 6c 8 Geo. 4, c. 71, s. 6, on removing the cause out
of an inferior jurisdiction, even though the defendant
knows that a less sum is sought to be recovered.
Brady v. Veeres, 320.
79. Rule absolute, in the first instance, to increase
the issues on the return of a distringas on a late
sheriff to sell goods seized under a fi»fa, Nowell v.
Underuood,5Qh,
80. On the defendant being arrested, he agreed to
a judge's order to stay the proceedings for a time, at
the end of which the plaintiff was to be at liberty to
sign judgment : the plaintiff cannot afterwards tax
costs without giving notice, as if the defendant had
not appeared ; but not having done so, the Court
will not set aside the judgment and execution as
irregular. Lliryd v. Kent, 130.
81. A ca.sa. having issued, on which the sheriff
sent his mandate to the bailiff of a lihrrty, who ob-
tained time to make his return, after which tiie sheriff
returned cepi corpus : — Held, that the bailiff was enti-
tled to have the rule to make a return discharged.
Jackhon v. Taylor, 135.
82. An action against executors, who pleaded
plene administravit, was referred to arhitration, pend-
ing which a third person recovered judgment by
default against them in another action; the Court
then allowed this judgment to be pleaded as a plea
puis darrein continuance before the arbitrator. AUler
V, Parke, 78.
PRISONER — See Practice, 23, 30, 55.
1. A prisoner who has been in custody in execution
fur more than twelve months for a debt less than 20/.,
is entitled as of right to his discharge under the
48 Geo. 3, c. 123, though he has previously, when
brought up under tlie compulsory clause of the Lords'
Act. refusi'd to deliver in a schedule. Clay v. Bow-
ler, 283.
2. The application for the discharge may, if the
prisoner himself is a lunatic, be made bv his next
friend, though no commission of lunacy has issued,
nor any committee been appointed. Id»
3. In trover for a barge, a verdict was given for the
plaintiff whh 90/. damages, which was reduced by
consent to a nominal sum of 40s., for which judgment
was entered, and the barge was returned : — Held,
that the defendant was entitled to be discharged un-
der the Small Debts' Act. Smith v. Preston, 93.
PRODUCTION OF DEEDS.
See Mandamus, 1. New Trial, 1.
PROHIBITION.
1. After sentence in the E( clesiasticti Court, the
Court will nut grant a prohibition, unless it is shcMn
clearly that there was a total want of jurisdiction.
Hart V. Marsh, 341 .
2. In a suit in the Ecclesiastical Court, to deprive
a clergyman of his living, sumo of the articles charged
K K
490
DIGEST,
him with offences cofrnisahle at common law, which
were not objected to in the progress of the suit. The
sentence found that the articles were for the most
part proved. The Court refused niter sentence to
grant a prohibition. Hart v. Marsh, 341.
S. Prohibition lies to a Spiritual Court if it pro-
ceeds to hear exceptions to the inventory exhibited
by an executor, even although the exceptions be filed
by a legatee. Griffiths v. Anthonif^ 398.
4. A significavit on the sentence of an Ecclesiasti-
cal Court having been set aside by the Court of Chan-
cery, for an ambiguity appearing in the sentence, and
no subsequent proceedings having been taken, and
there appearing no intention to proceed, the Court re-
fused a prohibition applied for, on the ground that no
good significavit could issue on such a defective
tentence. Bodenham v. Richctts, 132.
5. A prohibition lies to an Ecclesiastical Court,
where the question of custom or no custom is dis-
tinctly raised on the face of the libel and answer.
iihadet v. Oliver , 38.
PROMISSORY NOTE. See Bill of ExcnANCE, 3.
An instrument in form ** On demand I promise
to pay to J. G. J., or order, the sum of 120/.. with
lawful interest for the same, for value received ; and
I have deposited in hi;* hands title-deeds to lands
purchased from the devisees of IF. T., as a collateral
security for the same," iy a promissory note transfer-
able by indorsement. Wise v. Charleton, 49.
QUO WARRANTO.
1. An information in the nature of a quo warranto
lies at the instance of a private relator against indi-
viduals acting as memhers of a cnrp<«ration, although
the affidavits on which it is founded go to shew that
no such corporation has ever existed. The King v.
White, 403.
«. In Schedule A., 5 & 6 Will. 4, c. 76, Sunder-
land is mentioned as possessing n public corporation
for the re«roudeUing of which provisions are mude by
the act. The Court made a rule absolute for an in-
formation in the nature of a quo wai'rantOf at the in-
stance of a private relator, against a party acting as
mayor under those provisions, althouuh the aflidavits
in support of the rule went to shew that Sunderland
did not possets a public corporation at the time of
passing the act, and therefore that its provisions
could not apply. Id,
RATE.
See Highway, 1. Mandamus, 8. Poor, 13.
Statute, «, 3, 4, 5, 6.
1. Churchwardens are only authorized, by 59 Geo.
3, c. I34f to borrow money upon the credit of the
church rates, for the purpose of deria3ini; the future
expenses of repairs to the church : they have no au-
thority to make a rate for the purpose of enabliii«;
them to repay money borrowed to pay the expenses
incurred for by- gone repairs. The King v. The In-
habitants of Dursley, 9.
t. A person lent money on the credit of the church
rates, for the purpose of re-building and enlarging a
church under the 59 Geo. S, c. 131^, s. 40, and
agreed that the money should not he re|):iid lor
twenty years, nnlesH at the option of the church-
wardens:— Heldt that the churchwardens were bound
neveithelcss to raise annually, under that section, a
sum eqaal to the amornit of the interest, to form a '
fund for the ultimate re-payment of the principal.
The King v. The Churekwardens rf St. Michaet\ Peai-
bioke, 344.
RATE BOOK.— See Officer, 7.
RECOGNIZANCE.— See CEBTiomABi, 7, 9.
Pbaciice. 78.
Recognizances of bail taken under statute 5 & 6
W. 5c M., c. 1 1 , on the removal of an indictment, can-
not be estreated, the defendant having agreed with the
prosecutor to plead guilty and submit to a noiuinal
fine, without Ine knowledge of the bail. The King v.
Rogers, tS4.
RENDER OF PRISONER.
See Practice, 56, 57, 58.
REPLEVIN.— See Sheriff, «, 3, 4.
Where a landlord seises goods as m distress for n*nt,
and alter the distress payment of the rent is tendered
but refused, the tenant may maintain ref>levin in
respect of the unlawful detainer. Enans t . Elliott, tS\ .
RESTRAINT OF TRADE.
1. An agreement was made by a person, on enter-
ing into the service of a cheiuist, as his assistant, not
to carry on the trade of a chemist in the same town
as bis master did, nor within three miles of it. The
operation of the agreement was not limited to the
life of the master, nor to the time that he should
carry on his business, nor to any term of years ; and
therefore extended to the life of the assistant : —
Held, that the agreement was not on that account
illegal, as btinfi in restraint of trade. Hitchcock ^r.
Coker (in Error), 464.
2. lliere must be a good and valuable consider-
ation for such an agreement; but the Court will not
examine whether the consideration is equal in value
to what is given up. Id.
ROADS.— See Hiohwat.
RULF^ OF COURT.
1. Roles as to the admission and examination of
attornies. E. T. 6 W. 4, 1836, 1.
S. Rules on sheriff, M. T. 7 Will. 4, 1836. ?89.
Rules of Court on which Decisions are reported.
T. 31 Geo. 3. Attorney. Ex parte Ridley, 66.
W 1 Will. 4. 8. 1. Notice of bail. Piercers bail,
290. Hollings hail, «90.
T. 1 Will. 4, s. 3. Affidavit of justification. Rout's
bail, 991.
T. 1 Will. 4, 8. 7. Notice to plead. Fenton v. An-
stice, 195.
T. 1 Will. 4, s. 12. Taxing cosU. Lloyd v. AVnl,
130.
H. 9 Will. 4, 1. 5. Affidavit. Brown's hail, 291.
H. 2 Will. 4, 1. 8. Affidavit of debt. Smith v. Heap,
89.
H. 2 Will. 4, I. 17. Justifying bail. Barratt v.
James, 128.
H. 2 Will. 4. I. 33. Irregularity. Golding ▼. S«rr-
borofigh, 94.
H. 2 VV ill. 4, 1. 64. Costs. Peacock v. Harris, 456.
H. 2 Will. 4, I. 70. Judgment as in case of non-
suit. Robinson v. Taylor, 304.
H. 2 Will. 4, I. 72. Cognovit. Kirke v. Dark, 94.
DIGEST.
491
H. S W. 4, 1. 85. Charging in execution. Cclbron
▼. ifa/i,Sl6.
H. « Will. 4. V. Attachment. The King ▼. Thg
Sheriff of Shropshire, 319.
H. 4 Will. 4, 7. Demurrer books. Somert ▼. Afii-
ler, 117.
H. 4 Will. 4, 17. Notice of taiing costs. Lioyd v.
Kent, 130.
H. 4 Will. 4, s. 1. Declaration. Newnhatn v.
Hanny, S03.
H. 4 will. 4, 8. 3. Relation of judgments. C<;/-
bron V. //a//, 316.
H. 4 Will. 4, s. 5. PlendinK. Ba«(ard v. Smith,
428. Serjeant r. Chajey, 273.
H. 4 Wil/. 4. Pleading, assumpsit. Hayselden v.
6ta^; 204. 5/iearu;oo<i ▼. Ha]/, 249. Willis v.
Langridge, ioO.
H. 4 Will. 4. Pleading, debt. Jones v. AraJe, S8!2.
II. 4 Will. 4. Pleading, ca&e. Lillie v. Pnce, 381.
H. 4 Will. 4. Taxing costs. Masters v. Tickler,
81.
H. 6 Will. 4. Admission of attorney. Anon, 65.
£x /Hirte Ridley, 66.
SCIRE FACIAS.
In scire facias, a plea that a writ of error has been
sued out and was still pending, and that the judg-
ment had not been affirmed or reversed, is bad, as
not being an answer to the action. Snook v. Maddox,
188.
SCOTLAND, LAW OF.— See Pleading, 26.
SESSIONS.— See Poor. Inclosxjhf, 3.
1. The application by the overseers against the
father of a bastard, must be at the next practicable
sessions after the child first becomes chargeable.
The King v. The J unices of Oxfordshire, 110.
2. It is a question for the justices what circum.
stances shall entitle the overseers to make the appli-
cation at a subsequent sessions. Id,
3. In order to make an application at a subse-
quent sessions, it is not necessary to enter and respite
at the first sessions. Id,
4. Where a bastard child becomes chargeable to
the palish, the overseers ought to apply, under the
4^5 Will. 4, c. 76, s. 72, to the next General
Quarter Sessions of the Peace, for an order on the
puutive father ; or, at all events, if the application is
deferred to a subsequent sessions, the overseers must
shew that they made diligent inquiry to discover the
father, and that they did net discover him in time to
give him, before the next sessions, under the 73d
section of the statute, fourteen days' notice of the
intended application. Hex v. Heath, 143.
5. Semite, that in such a case the overseers should
make the application to the sessions, and get the
order for the hearing respited, la,
6. Where a statute gives a patty the right of ap-
pealing to the sessions, on notice being given, that
Court must not impose on him any new condition of
appeal not imposed by statute. The King v. The
Justices of Staford>hire, 48.
7. On an appeal to the sessions against a church-
rate, under 53 Geo. 3, c. 127, s. 7. notice of the
appeal was given to one only of the two magistrates
who had acted together in making the oider appealed
agtinst '.'^Heid, that the seasiona were wrong in
rdfosing to hear an appeal on that groand. Jd,
8. A party was convicted before two magistrates
under the 17 Geo. 3, c 56. and gave notice of appeal,
but did not enter into recognizances to prosecute the
appeal and abide the judgment, and was therefore
committed for want of entering into such recogni-
zances. W'hen the sessions arrived, he did not proceed
with the appeal, and the prosecutor did not move to
affirm the conviction. At the end of the sessions he
was discharged, the commitment, for want of entering
into the required recognizances, being then satisfied :
Held, that this Court would not grant a mandamus to
the convicting magistrates to issue their warrant
against the defendant upon the conviction, it being at
best doubtful whether, under these circumstancet,
their jurisdiction was not altogether at an end. Ths
King V. The Justices of Middlesex, 222.
9. It seems that when the defendant did not
proceed with the appeal, the prosecutor ought to kafe
moved the sessions to affirm the conviction. Id.
10. If the Court of Quarter Sessions sends up a
case for the opinion of the Court of K. B., and de*
sire tu have their order confirmed or quashed, ac-
cording as the Court shiiil think their construction of
a written instrument right or wrong, but omit to set
out sufficient to stiew whether their order is on the
whole correct or not, the Court of K. B. will never*
theless confirm or qua&h the order, as lliey think the
construction rij;ht or wrong. The King ▼. The In^
habitants of Billiughay, 419.
11. A case sent by the sessions for the opinion of
the Court of K. B.. stated, that at the hearing of iin
appeal touching the settlement of a pauper, it was
piO|iosed to give in evidence conversations between
the parties to a written agreement, but did not slate
what those conversations were ; also thut it was pro-
posed to give in evidence an indorsement upon the
agreeroeni, but that it was not proved that the in-
dorsement wa% ill existence when the agreement was
signed. Hie question stated for the opinion of the
Court was the construction of the agreement. The
Court refused to send the case to be restated. Id,
SETTLEMENT.— See Peon.
SEWEllS.
Where a collector for the Commissioners of Sewers
receives from them a warrant directing him to dis-
train and afterwards sell the goods of A., he cannot,
if he distrain the goods of A.'s tenant, justif? the
distress on the ground of his general aothority of col-
lector. Whatever that general authority may be, it
is taken away in the particular case by the warrant
directing him to do a specific thing. Sahourin t.
KeaU, 103.
SEXTON.— See Mandakvs, 5, 6, 7.
SHERIFF.
See Attorney, 16. Practice, IV, 79, 81. Rulss
OP Court, 2.
1. If a sheriflT applies for relief under the Inter-
pleader Act, and on hearing the case his rule is dis-
charged, he has afterwaids a reasonable time to make
his return ; and therefore an attachment obtained
against him the same day for not making a return,
is irregular. The King v. The Sheriff vjf Hertford-
shire, 122.
492
DIGEST.
2. A replevin clerk is bound to make reasonable
and cautions inquiry into the apparent lesponsibility
of persons who. being unknown to him, tender them-
selves to him as replevin sureties. Jeffery v. Bastard,
60.
3. It is not sufficient to take the statements of the
patties themselves, the replevin clerk must inquire
from other persons. Id,
4. Semble, that he is not bound to travel out of his
own office for the purpose of making inquiries, but he
may require vouchers to be brought to him. Id,
5. A writ of attachment against B. issued from the
Court of Chancery at the suit of A. The sheriff
attached B. by his body. B. was discharged from
custody as privileged from arrest. In an action upon
the case by A. against the sheriff for a negligent dis-
charge of his duty, A. must state precisely the nature
of the privilege which prevented the ordinary duty of
the sheriff from attaching with regard to B., and for
want of such statement the declaration will be bad
on general demurrer. Lloyd v. Wood, 158.
6. Quttre, whether an action can be maintained at
all by A. against the sheriff, under such circum-
stances. Id,
SLANDER.
1. Words spoken by one member of a charitable
association to another, respecting the conduct of a
medical man employed by the association, are not a
privileged communication. Martin v. Strong, 336.
2. SembU, if they had been spoken at a meeting of
the association, held fur the consideration of the
medical man's conduct, it would be otherwise. Id.
SMALL DEBTS ACT.
See Practice, 49. Prisoner.
STAMP.
See LiMiTATTON of Action, 2. Mandamus, 1.
L The proper stamp for a lease, demising a mes-
suage and lands at a rent ascertained by the instru*
ment, and also certain other lands at the rent fhen
paid for them by A., but not mentioning the amouct
of that rent, is an ad valorem stamp, calculated upon
the whole amount of the rent to be paid for all the
lands. Parry v. Deere, 395.
2. An attornment where the tenant merely puts
one person in the place of another as his landlord,
but continues to hold under the same terms and con-
ditions as before, is a mere acknowledgment that the
person making it is tenant, and it requires no stamp.
I)o€ d. Limey v. Edwards, 139.
STATUTE. — See Compensation. Inclosup.e.
OrpicER, 6. Ple/ding, 23.
1. The words ** owner or proprietor of land," used
in a compensation clause in a local act of parliament,
to indicate the persons to whom compensntion is to be
made for injuiies arising out of the prosecution of the
act, have not necessarily any technical meaning con-
fined to the owner of the inheritance, but must be
construed with reference to the general object of the
act, and mean any person who has any estate or in-
terest— as, for instance, a tenant— in the land, who
sustains loss or damage. Lister v. Lobby, 12.
2. The word " hereditament,'* when used as a de-
icription of property liable to be rated in a statute
need not necessarily be construed in its larger and
legal sense, but when found with other words may be
construed with them as a word eiusdem generis.
I'herefore, where a local act imposed a rate on every
person *' who should inhabit, hold, occupy, possess,
or enjoy any land, house, shop, warehouse, or other
building, tenement, or hereditament:'' it was held,
that the word ** hereditament" meant only such as
were capable of corporeal enjoyment, and did not ex-
tend to make liable to be rated a money payment in
lieu of tolls. CoUbrooke v. TickeU, 23.
3. The burden of proving that a party is liable to
be rated, by the operation of a local act of parliament,
for pronerty for which he was never before liable to
be ratea, lies on the party seeking to impose it. Id,
4. Per Coleridge* J. The words of a local act of
parliament, imposing a charge upon those who were
never before liable to it, should be so clear and ex-
press, that the Court should be able to see that the
persons to be charged have had due warning of the
intention to charge them. Id,
5. Where an Inclosure Act directs that a corn
rent shall be awarded to the rector in lieu of tithes,
and that, in making the valuation, *' the tithes of all
ancient and inclosed lands shall be taken as equal in
value to one-fifth part of the net value of the said
lands :" — I'he rector was held to be rateable in re-
spect of the corn rent so awarded to him. The King
V. The Churchirardens of IVist^tw, 95.
6. Semble, that when the legislature thus speaks of
" the tithes" generally, and then of the " net value
of the lands as the equivalent for them," it must be
presumed to mean that one-fifth of the net annual
value of the land is equal to the gross value of the
tithes, and the rector is liable to be rated for the pay-
ment substituted, as he originally was for the tithes
themselves. Id.
Statutes on which Decisions are reported,
8 H. 6, c. 9, Forcible detainer. The King v. WiUon,
225.
21 Jac. 1, c. 16, s. 7, Limitation of action. Piggott
V. Rush, 28.
12 Car. 2, c. 24, ss. 8, 9. Guardian. The King v,
Istey, 196.
29 Car. 2, c. 3, ss. I, 2, 4. Parol demise. Lord
Bolton V. Tomliu, 369.
1 Jac. 2, c. 22, (local). Vestry. The King v. St,
James, Westminster, 253.
4 & 5 W. & M. c. 20. Docketing a judgment Doe
d. Barron v. Pnrchas, 60.
2 Geo. 2r c. 23, s. 23. Bill of costs. Pepper ▼.
Yratman, 116.
5 Geo. 2, c. 19, s. 2. Recognizince. The King v.
The Inhahitnuts of' Abergele, 37 5.
7 Geo. 2, c. 20. Mortgage. Doe d. Hnrsl v. Clif-
ton. Doe d. Orchard v. Stuhbs, 285.
13 (leo. 2, c. 18. s. 5. Certiorari. The King v. The
Inhabitants of Abergele, 375. The Kingv, The Jus*
tices of Middlesex, 407.
14 Geo. 2, c. 17. Judgment as in case of a non-
suit. Ward V, Turner, 90. Brough v. Scarby,
139.
17 Geo. 2, c. 3. Inspection of rate books. The King
v. The Vtsirymen h' St. Marytebone, 261.
17 Geo. 2, c. 38. Inspection of rate books. The
King V. The Vestrymen of St, Manflebone, 261.
22 Geo. 2, c. 46, s. 14. Clerk of the peace. Faulk-
ner V. Chei'cll, 183.
DIGEST.
493
23 Geo. 2, c. 33. Couit of Requests. Wills v. Lung-
ridge, 309.
13 Geo. 3, c. 78, s. 48. Surveyor of highways.
Harrison v. Hound, 18.
17 Geo. 3, c. 66, s. 20. Embezzling silk. The King
V. The Jtisticei of MiddUsei, 222.
19 Geo. 3, c. 70, s. 6. lleoogDizdnce. Brady v.
Veeres, 320.
35 Geo. 3, c. 101, s. 2. Suspending order of re-
moval. TJie King v. The Inhabitants of Oldland, 4.
41 Geo. 3, U. K. c. 109, s. 3. Inclosure. The King
V. Ma^shf 255.
43 Geo. 3, c.46. Vexatious arresL Jants v. Jehu,
119.
46 Geo. 3, c. Ixxxix. s. 53, (local). Rateability.
Colebrnoke v. Tickell, 23.
48 Geo. 3, c. 123. Small Debu Act Cloy v.Bow-
ler, 283. Smith v. Preston, 93.
49 Geo. 3, c. 125, s. 3. Friendly Socieiy. Day v.
King, 178.
51 Geo. 3. c. XXV. s. 46, (local). Inclosure. Estate.
Doe d. Harris v. Sounder, 350.
53 Geo. 3, c. 127, s. 7. Notice of appeal. The King
V. The JtiUicts of Staffordshire, 48.
55 Geo. 3, c. 68. Stopping highway. The Kin^ v.
The Inhabitants of Miloerion, 434. Footpalii. The
King V, The Justices tf Middlesex, 407.
55 Geo. 3, c. 194, s. 21. Apothecary. Shearuood v.
Hay, 249. Willis v. Langridge, 250.
56 Geo. 3, c. 139. Parish apprentice. The King v.
Inhabitants of Maidstone, 198. The King v. The
Inhabitants of Witney, 150.
58 Geo. 3, c. 69, a. 6. Surveyor of highways. Har-
rison v. Round, 18.
s. 8. Election of churchwarden.
Campbell (clerk) v. Maund, 457.
59 Geu. 3, c. 134, s. 14. Repairs of a church. Rate.
The King v. 2'he Churchwardens of Dursley, 9.
s. 40. Rebuilding church. The
King v. The Churchwardens of St. Michael, Pem-
broke, 344.
59 Geo. 3, c. cxviii. (local). Action against com-
missioners. Cane v. Chapman, 355.
3 Geo. 4, c. 113. Pension. 'The King v. The Lords
Commissioners of the Treasury, 67.
3 Geo. 4, c. 126, 8.51. Rale, fhe King v. The Trus-
tees of the Great Dover Street Road, 423.
■ s. 85. Inquisition. The King v. The
Trustees of the Norwich and Watton Turnpike Road,
385.
4 Geo. 4, c. 95, s. 31. Rate. TJie King v. The Trus-
tees of the Great Dover Street Road, 423.
8. 87. Certiorari. The King v. The
Trustees of theNoi-wich and Watton Turnpike Road,
385.
5 Geo. 4, c. cxxvi, s. 10, (local). Election of church-
wardens. Campbell (clerk) v. Maund, (in error),
457.
6 Geo. 4, c. 57. Settlement. Tenement. The King v.
Great and Little Usworth and North Biddick, 100.
7 Geo. 4, c. 57, s. 61. Insolvent, new security.
Smith V. Alexander , 82.
7 & 8 Geo. 4, c. 71, s. 6. Recognizance. Brady v.
Veeres, 320.
9 Geo. 4, c. 14, s. 8. Acknowledgment of Debt.
Morris v. Dixon, 57.
9 Geo. 4, c. cxvi. s. 89, (private). Compensatioo.
The King v. The London Dock Company, 267.
1 1 Geo. 4 & 1 Will. A, c. 68. Carrier. Syms v.
C/iap/iii, 411.
VOL. II.
li Geo. 4 & 1 Will. 4, c. 70. 8. 12, Justifying
bail. Barrett v. James, 128.
s. 16. Welsh Attor-
nies. In re Williams, 294.
s. 21. Render. Scaith
V. Brown, 322.
11 Geo. 4 6c 1 Will. 4, c. v, s. 25, (local). Ratea-
bility. The King v. 'The Churchwardens of Wistow,
95.
1 & 2 Will. 4, c. 58, 8. 1. Interpleader. Lawrence
V. Matthews, 123.
8. 6. Interpleader. Inland v.
Bushell, 118. iMshmar v. Clariugbold, 87. Mat-
thews v. Sims, 298.
1 ^^ 2 Will. 4, c. 60, 8. 32. Inspection of rate books.
The Kin^ v. The Vestrymen oj St. Marylebone, 261 .
2 & 3 Will. 4, c. 39, ss. 1, 4. Capias. Margetson
V. Tngghe, 85. Wickens v. Parker , 137.
3 & 4 Will. 4. c. 27, s. 15. Limitation of action.
Doe d. Jones v. Williams, 213. Doe d. Bur geu v.
Thompson, 451.
3 & 4 Will. 4, c. 42. s. 1. Pleading the general is-
sue. Haine v. Davey, 30.
8. 23. Amendment. Serjeant
V. Chafey, 273. Guest v. Elwes, 34.
- 8. 39. Arbitration. The King
V. Bardell, 4()1.
3 6c 4 Will 4. c. 52, s. 50. Customs. The King ? .
The Commissioners of Customs, 247.
8.108. Customs. Aleockv.
Taylor, 58.
4 & 5 Will. 4, c. 76, s. 72. Order of bastardy. The
King V. The Justices of Oxfordshire, 110. The
King v. Heath, 143.
8. 81. Appeal. The King y.
The Inhabitants of HoUbeaeh, 414. The King v.
The Inhabitants of Kelvedon, 4]5. Notice of ap*
peal. The King t. The Justices of Conneall, 167.
5 & 6 Will. 4, c. 59, a. 9. Cruelty to animals. Hop'
kins V. Crowe, 21.
5 & 6 Will. 4, c. 76. Municipal Corporation. The
King V. White, 403. The King v. He Mayor and
Assessors of Hythe, 455. The King v. Chitty, 399.
The King v. Williams, 275.
5 & 6 Will. 4, c. xxxvi, (local). ConstructioD of
Road Act. Lister v. Lobley, 12.
STATUTE OF FRAUDS.
1. Two parties entered into a written agreement,
by which one was to take a farm of the other, and to
take the straw, chafT, &c. at a valuation to be made
by such competent persons as the two parties should
respectively appoint. Such agreement is entire — the
two parts cannot be separated from each other; and
if one person only is, by parol agreement, afterwards
appointed to make the valuation, the landlord cannot
maintain an action upon the parol agreement thus
substituted, even though the straw and chaflT, &c.
have been taken and used by the tenant. Harvey v.
Grabham, 146.
2. The defendant's testator agreed by parol with
the plaintiflf's steward to hire some land from year
to year, upon the special terms mentioned in some
printed rules, and to commence occupation at a future
day ; the plaintiff's attorney then signed a memoran-
dum of the hiring at the back of the printed rules :
— Held, that after a tenancy was actually created by
entry and payment of rent, that this copy of the
printed rules, and the memorandum indoned, might bo
L L
494 Die
reid by tlM Mtoroey who u'gned it, in oider lo re-
freih hii memoTy at lo the tp^^ial tcrmi under which
tb* land vrai hired, ilthaugh there might perhaps
have been, in Ihe 6nt iniuoce, merely an agreemeat
for a Iwie, which wa» not lo be performed within i
y«r, ind wai therefore bad by the fourth lactian of
the Stalutt of Fnudi. Lord Bollm v. Ttmtin, 369.
3. A parol )eue for a term not eiceeding three
yeara. wimnted by the lecood Beclion of ihe Slatnle
of Fi«id*,m>y beai special in iu terms asawrinen
SURGEON— See Pliidisio, 4, S.
TITHES.— See SriniTis, S, 6.
TRESPASS.
SeeJDSTicEsoiTniPEicE. WiMAMTorJumcM.
A penoD who ii not Ihe owner of an aoimal can-
not, snder 6 & 6 WiU. 4, c. 59, s. 9, direct a police
officer to take into coitody a person who ha* ill-
treated it, nnleis auch penon saw the ill -treatment
inSicled. In such ■ eaie the bona fides of the inten-
tion of the perwin giving the charge a£Ebrds him no
prolKtion nndcr Ihe ■tatale in an action of trespass.
Hiiphjniv. Ctuih, 31.
TROVER.— See OvBMam, 1.
A bam of wood, and thatched, was erected bj a
tenuii OB staddles, or blocks of itooe with raps, some
of wbicb stood on Ihe surface of the nil, same a few
inchea in the greuod, and others on a foundation of
brick and mortar, rendered neceiiary by the uneven-
ness of the grouod. The whole of the timber-work
rested eolirely on the tladdlei by its weight alone,
and could be reODved wilhanl removiug the, caps
which were afGied to the staddles by mortar : — Htld,
that the wood-work and thatch of such a barn was
not aSiied lo the freehold, bat was a chattel, for which
troTat might be muntained. WandiboTiHigh t. Atalm,
WARRANT OF JUSTICES.
I. Persons applying nndcr a statute ibr a warrant
to enforce payoMnt of rant for git supplied, and who
by ihemselves or their oiEcer atkerwardi execute it,
cannot sel np the warrant as ibeir justification in an
action brought against ihem by the party whose goods
have been leiied under it, Paiattr v. Th* Liwtrpaol
Oil Gal Company, 333.
1. It Kcms that the warrant ought la slate the de-
mand of Ihe rent, and the summons and hearing on
which the conviction proceeded. U.
WARRANT OF ATTORNEY.
See Insolvent. Practice, 39.
Judgment entered upon an old warrant of aUomej,
on an affidavit that the defendant had been seen alive
eight months previoDsly in New South Wales. Jclin-
lOH V. Fry, 293.
WILL
to Ihe DBS of my eraikdaoD J.G.,
ng the term of hu natural life.
It of wasle, and immedialely aftei
aid J. G.," to truiteei to rapport
" Devertheleu to pennii and
:■ Hsigns, daring hia natural life.
- 1, and profits; and inme-
of the firtt.
npeac
37,
TURNPIKE ROAD-
VESTRY.— See Orricia. OvinssiB, 3.
suffi»r J. G. and his i
to receive the rents, ii
diatelv after hi* doc , _ ...^ ..„ _. .... .
Bsconcl, aod every other son of the aid J. G.. ai
rally and anccessivety in remainder, one after another,
according to ihe priori^ of tbeii respective births,
and the heirs male of the body of such son, so that
every elder of the same Boni, and the heirs male of
ht> body, shall always be preferred to every younger
of ihe same sons and (be heira male of his body."
Bj a codicil, he devised all hii freehold, copyhold,
andpencHial estate to bia daughter A. M.U. for life,
and afler the determinatiaD of ihit estate, to his
" gralMlson J. G. aod hia hein, in strict email, as in
mj said will directed i" and in failure of issue of tha
■aid J. G., he ordered that his said eaiate and effects
should go and descend as is by his will dincled i —
fltU, that under this will and eodidl, J.G. took only
■n eeUle for life. Grawt v. HkA; 74.
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